WHAT IS A MISCONDUCT RESTRAINING ORDER?
A Misconduct Restraining Order will be granted to an applicant when that person can satisfy the Court that another person with whom they are not in a domestic or family relationship (for example a friend, work colleague or associate) has engaged in behaviours which are intimidating or offensive, are likely to lead to, a breach of the peace or have resulted in damage to property owned, or in the possession of, the applicant.
A Misconduct Restraining Order is not appropriate where personal violence has been committed against the applicant by another or where the parties have previously been in a domestic or family relationship.
WHAT BEHAVIOURS ARE CONSIDERED TO BE A BREACH OF THE PEACE?
Behaviours which amount to breach of the peace include, but are not limited to, yelling and shouting in a public place, preventing a person from entering or leaving premises or general conduct which could be considered disorderly.
HOW DO YOU APPLY FOR A MISCONDUCT RESTRAINING ORDER?
A person who wishes to apply for a Misconduct Restraining Order against a person over the age of 18 years old must make an application to their local Magistrates Court. The cost of an application for a Misconduct Restraining Order is $159.50. This fee is to be paid directly to the Court and is to be paid at the time the application form is submitted to, or filed in, the Court Registry.
If a Misconduct Restraining Order is sought against a person under the age of 18 years old that application must be made in the Childrens Court of Western Australia.
When completing the application form the applicant will need to list the details of the person the applicant is seeking to be protected from (‘the respondent’) along with the details of any incidences of the above-mentioned behaviours.
Should you be a person who is seeking the protection of a Misconduct Restraining Order our team of experienced lawyers can assist you in completing and filing your application.
WHAT IS THE MAXIMUM DURATION A MSICONDUCT RESTRAINING ORDER CAN BE IN PLACE?
The maximum duration a Misconduct Restraining Order can be in place against a person over the age of 18 years old is for a period of one year.
The maximum duration a Misconduct Restraining Order can be in place against a person under the age of 18 is for a period of six (6) months.
WHAT HAPPENS AFTER THE APPLICATION FOR A MISCONDUCT ORDER IS FILED IN COURT?
Once an application has been filed, or handed into, the Court Registry the Court will then set a date for a Mention Hearing. Unlike a Violence Restraining Order or a Family Violence Restraining Order a Hearing will not take place straight away and will not be heard in the absence of the respondent.
Once the application is filed the Western Australian Police will then serve a copy of the Order on the Respondent. It is at this time that the Order will come into force.
Once the Order is served on the respondent, the respondent will have a period of twenty-one (21) days to object to that order.
If the respondent does not object, to the Misconduct Restraining Order the order will become a Final Order and will be in place for a period of 1 year if the respondent is an adult and 6 months if the respondent is a person under the age of 18 years old.
If the respondent does object both parties will need to attend the Mention Hearing on the date as set by the Court.
WHAT HAPPENS AT THE MENTION HEARING?
At the Mention Hearing the applicant and respondent will be present and the Magistrate will seek to determine whether, or not, the matter can be settled by way of an Undertaking or some other agreement between the parties. If the applicant and the respondent cannot settle the matter the Magistrate will list the matter for a Final Orders Hearing.
WHAT FACTORS WILL BE TAKEN INTO CONSIDERATION BY THE COURT AT A FINAL ORDER HEARING:
Section 35 of the Restraining Orders Act 1997 (WA) sets out that the Court must take into account the following factors when deciding whether, or not, to grant a person a Misconduct Restraining Order. These factors include, but are not limited to, the following types of considerations:
- The need to ensure that the applicant is protected from intimidatory or offensive behaviour; and
- Property owned by, or in the possession of, the applicant is protected from damage by the respondent; and
- The wellbeing of children who are likely to be affected by the respondent’s behaviour; and
- The accommodation needs of both the applicant and the respondent; and
- Hardship that may be caused to the respondent if the order is made by the Court; and
- Any criminal convictions of the respondent; and
- The need to ensure that the public is protected from breaches of the peace.
WHERE ARE OUR LAWYERS LOCATED?
We have offices in Perth, Joondalup, Mandurah, Bunbury, and Albany, but have experience representing and advising clients throughout regional and remote areas in WA. Our criminal defence lawyers can travel to any court in WA, and are willing to assist you no matter where in WA you may be.
If you require assistance in relation to any of the information provided above, HHG Legal Group’s lawyers can provide advice to you and your business to minimise your future risk. Contact us today by emailing our Crime & Traffic Lawyers on email@example.com or calling us on (08) 9322 1966.