Our Criminal Law team regularly advises and represents clients when applying for a restraining order, or defending an application. Our team is familiar with the laws, procedure and strategies that can put you in the strongest possible position to either keep yourself safe in any application you make or to respond to unwarranted and unfair applications you may have had made against you. And as criminal lawyers, we can also utilise our advocacy skills when necessary.
WHAT IS A RESTRAINING ORDER?
A restraining order is legal instrument which restrains certain types of behavior in a particular person. A restraining order is not a criminal conviction and is not recorded on your criminal record.
A restraining order is not proof that the person restrained behaved in a certain way, or that they did anything wrong, and it isn’t a finding of guilt. However, you need to be aware that if the application for a VRO is opposed and the matter is heard at trial, the court might make certain findings that could impact any family court proceedings you might have on foot now or in the future. Contact us for more information about this.
It is a criminal offence for the person bound by the restraining order to breach any condition contained therein. It is an offence that can result in imprisonment, and a conviction for breaching a restraining order does appear on a criminal record.
MAKING AN APPLICATION FOR A RESTRAINING ORDER
Will I get a restraining order?
The answer to this question depends on your circumstances, and your relationship to the person against whom you want the order. There are a few different sorts of orders the court may impose, and it depends on the circumstances specific to you.
Contact us to discuss your circumstances and the appropriate order to seek. Our team can also advise you on how to get that order.
Types of restraining order matters with which we can assist you include:
- Family Violence Restraining Orders (FVRO’s)
- Violence Restraining Orders (VRO’s)
- Misconduct Restraining Orders (MRO’s)
- Interim ex parte applications (when you need an order urgently)
- Final Order Hearings (Trial Hearings)
- Negotiation of undertakings and conduct agreements and VRO’s or MRO’s by consent (to avoid a trial)
- Applications to vary restraining orders or to vary conduct agreements
- Costs applications against unsuccessful, frivolous or vexatious applications
- Safety planning and safety referrals (e.g. to refuges and other organisations)
Applying For a Restraining Order
In addition to representing you in court during the restraining order process, we also provide comprehensive and practical advice about safety planning, your options for a negotiated settlement (like an undertaking or conduct agreement), and the effect that will likely have on your individual circumstances. Even if you don’t want to go to trial, you can still rely on our expertise to negotiate a resolution outside of court.
IMPORTANT: if you are in immediate danger, please call 000 before anyone else.
How easy is it to get a restraining order (VRO)?
If you need a VRO, we can help. Often, you will need a restraining VRO quite quickly. Please contact us any time to discuss this. If you need a VRO urgently, please contact our Senior Criminal Lawyer Naomi Sherrington on (08) 9211 2604. We can help you get an application before the courts very quickly.
The process for obtaining one is by first preparing a written application, and then attending court to explain to the Magistrate why you need one. He or she will then consider whether to make what’s known as an “Interim Order”.
This might seem daunting, but we can help you every step of the way.
After the interim order is made, the court will give the respondent 21 days to object to it. If the respondent doesn’t object, the order becomes final. If they do, the matter must be heard at a “Final Order Hearing”, which is essentially a trial. We can represent you at the trial, and provide advice throughout the entire process. We can also speak to the other side on your behalf, so you don’t need to communicate with them.
What does a restraining order cover? What restrictions could be imposed?
The court will decide what conditions are appropriate. You can ask the court to impose conditions that restrain how the respondent behaves towards you, whether and how the respondent may contact you, and whether and how close they may approach you, your home, where you work or study etc. The court can also restrain what the respondent can publish and share on the internet. There are other things the court may restrain: contact us to discuss your specific circumstances and what sort of conditions the court could be asked to impose.
How our team has helped clients recently:
- Obtained an FVRO for a husband who had been subject to domestic violence in circumstances where the Magistrate clearly stated that he did not want to make the order but felt he had no choice after hearing the evidence and submissions made.
- Obtained an FVRO where the person restrained had access to firearms that were missing and could not be located by police. The client had been turned away once at the local court as they were at capacity. Perth Magistrates Court tried to turn us away as they were at capacity but we convinced the counter staff that the matter was too serious and had to be heard immediately.
- In circumstances where the other party objected to the making of a VRO, we successfully negotiated a “Conduct Agreement Order” to protect our client from family violence without the need for a stressful and costly trial.
RESPONDING TO AN APPLICATION MADE AGAINST YOU
Restraining orders can impact where you can go, what you do, where you live and even whether you can see your children. It is important to get sound advice from experienced, specialist lawyers about your restraining order matter. This can save you time, money and stress.
If you wish to defend your position at a final order trial hearing, you will need proficient counsel with regular trial experience. Unlike many other family law or generalist law firms, we have the experience and the expertise to represent clients who require trial representation at a final order trial hearing, without having to brief the matter out to a barrister at additional expense to the client. This can save you cost and time during what is often a very stressful and emotional time.
There are strict time restraints on defending an application, so it is important to contact us immediately.
Will I have to go to court?
If you are the respondent in an application for a restraining order, you need to go to court, or retain a lawyer to represent you. If you don’t, the court can make the order without hearing from you.
If you are the applicant, you must go to court or retain a lawyer to represent you. If you don’t, the court might dismiss your application.
Will the restraining order be public record?
No. These proceedings are heard in a “closed court”, but if you breach one then that becomes a criminal charge. That charge (and the proceedings relating to it) will be heard in open court and will appear on your criminal record.
Dos and don’ts in the meantime
- Get legal advice! Especially if you have family court proceedings (or potentially will do in the future). These proceedings can have an enormous impact on your family court applications, so it is important to get quality advice at the earliest opportunity on both the VRO proceedings and their impact on any family court proceedings. Contact us so we can help you navigate through this process.
- Seek advice as soon as possible. There are some strict timeframes in these proceedings, so the sooner you act, the better.
- Keep all paperwork that relates to these proceedings.
- Keep a diary and note any contact you have from the other party.
- Cease all contact with the other party, if that’s what the order says you must do. Contact us if you are unsure what your order means.
- Contact the other party, unless you are certain your order permits it. Contact us if you are unsure what your order means.
- Stress out about it. Contact us instead, and discuss what the order means for you, and what your next steps are.
- Respond to any contact from the other party, if the order doesn’t permit it. Just keep a record of the contact and call us if you are unsure.
If you would like help now to understand the systems and processes involved in violence restraining order matters, please contact our team today.
How our team has helped clients recently:
- A client sought our representation after being served with a VRO against him. As a result of our strategic advice, the court dismissed the VRO without the need for a trial, saving our client from the cost and inconvenience of preparing the matter for trial.
- Saved a client from having to pay a significant amount in legal fees by successfully defending an application for costs in a restraining order matter. The court agreed with our submission that the application for the restraining order was not “frivolous or vexatious” and rejected the other party’s application for costs. Our client was not ordered to pay any of the other side’s legal costs, despite withdrawing the FVRO.
- Represented a client charged with his third breach of a restraining order (which activates mandatory imprisonment provisions), and was able to successfully negotiate with the prosecution for the discontinuance of one of the charges, thereby avoiding the mandatory imprisonment provisions. Our client instead received a fine, and – after a persuasive plea in mitigation – had his conviction declared as spent for the second time, and for the same type of offence.