Family Violence Restraining Order

Family Violence Restraining Order

What is a Family Violence Restraining Order?

In Western Australia, a FVRO is intended to restrain a person who has committed family violence against a family member and who is likely to commit family violence against that family member again or behaves in a way that makes the family member believe that family violence will be committed in the future.

A FVRO should be obtained if a party requires protection from a person whom they are, or were in a relationship. For example, the husband / wife, defacto partner and ex-partner.

“Family violence” is defined within the Restraining Orders Act 1997 (WA) (“the Act”) to mean violence, or a threat of violence, by a person towards a family member of the person; or any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.   (See section 5A (1) and (2) of the Act)

Key provisions by the Court to grant a FVRO

A FVRO is to specify the name of the person for whose benefit the order is made and the name of the person whose lawful activities and behaviour restraints are imposed by the order. (See Section 10C (a) and (b) of the Act).

When applying for a FVRO, the Court needs to be satisfied that:

1. the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person; or
2. a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected. (See section 10D (a) and (b) of the Act). The Court also has the ability to be provided with information in the possession of the Police Force of Western Australian by the Commissioner of Police. This information relates to any criminal convictions of the respondent; and / or any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise (See section 10F (4) and section 10F (1) subsection (i), (j), (k) and (I).
3. The information is required to be in the form of a signed certificate. (See section 10F (5) to (8) of the Act as it relates to the provisions for the certificate and records)
4. The Court is also required to obtain information from other sources. If there has been a past history of the respondent and the person seeking to be protected, a past history of applications under the Act is not to be regarded in itself as sufficient to give rise to any presumption as to the merits of the application (see section 10F (3) of the Act).

The Court also has the ability to be provided with information in the possession of the Police Force of Western Australian by the Commissioner of Police. This information relates to any criminal convictions of the respondent; and / or any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise (See section 10F (4) and section 10F (1) subsection (i), (j), (k) and (I).

The information is required to be in the form of a signed certificate. (See section 10F (5) to (8) of the Act as it relates to the provisions for the certificate and records)

Restraints on a FVRO

Once a Court is satisfied a FVRO should be made, a Court (at section 10G (1) of the Act) may impose such restraints on the lawful activities and behaviours of the respondent as the Court considers appropriate to prevent the respondent:

1. committing family violence against the person seeking to be protected; or
2. if the person seeking to be protected by the order is a child, exposing a child to any family violence committed by the respondent; or
3. behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them. A FVRO will come into force when it is served on the person who is bound by the order, of if a later time is specified in the order, at that time. (See section 16 (1) of the Act)
4. If the FVRO is not served on a person who is bound by the order, either interim or final, within 2 years then it will lapse. (See section 16 (2) of the Act)

Duration of a FVRO generally

A FVRO will come into force when it is served on the person who is bound by the order, of if a later time is specified in the order, at that time. (See section 16 (1) of the Act)

If the FVRO is not served on a person who is bound by the order, either interim or final, within 2 years then it will lapse. (See section 16 (2) of the Act)

How to apply for a VRO

In order to apply for a FVRO, you need to complete and lodge an Application – Family Violence Restraining Order.   There is no fee payable for lodging a FVRO application at the Magistrates Court of Western Australia.

If a person breaches the terms of a FVRO, they commit a criminal offence and may be fined or imprisoned.

The Magistrate Court website has a Fact Sheet 38 that relates to Violence Restraining Orders. The same provisions apply for a FVRO.

For review of the Fact Sheet please press on the link: http://www.magistratescourt.wa.gov.au/_files/Civil_factsheet_38.pdf

Cancellation or variation of orders

If circumstances change, a party can make an application to cancel or vary the order made by the Court. This is a separate application and can be found on the Magistrates Court of Western Australia website. (See section 49 of the Act)

If a party makes an application to cancel or vary a restraining order the Court will fix a hearing date (usually in about 4 weeks). The application can be heard in the absence of the bound person or a summons will be sent to the person bound to attend.

If the person bound by the order makes an application to cancel or vary a restraining order, a leave hearing to seek permission to proceed will be conducted in your absence. If the person bound is successful a summons will be sent to the party to attend Court. It is important that the party’s attend Court when required as the order may be changed if the party does not attend and give evidence to the Court.

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E: sarah.brown@kimwilson.com.au