If someone is violent to you, threatens you or your property, or harasses or intimidates you and you are concerned that it will continue, then you can apply to have a restraining order taken out against them. Although each order is individual, a restraining order can make it an offence for that person to come near you or your property.
A restraining order is designed to prevent acts of physical violence or to stop threats in the future. It is an order of the court requiring a person to behave in certain ways and is worded to fit each particular circumstance. If a person disobeys the terms of a restraining order they may be fined or imprisoned.
Violence Restraining Orders
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These are intended to restrain a person who you believe is likely to either commit a violent personal offence against you or a person for whom you have legal responsibility (such as a child) or behave in a way to create a fear that such an offence will be committed. If you have already been attacked or threatened with violence, a criminal offence may also have been committed. You should tell the police and ask for an offence report number.
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Misconduct Restraining Orders
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These are intended to restrain a person from behaving in a way that is intimidating or offensive to you or a person for whom you have legal responsibility, or that is likely to cause damage to your property or from committing a breach of the peace. |
Applications for either type of order can be made by attending the Magistrates Court (or, where the applicant is a child, to the Children's Court) during normal office hours (9am to 4pm). The police can apply on your behalf, and in cases where violence has occurred they are encouraged to apply on your behalf.
Under special circumstances a violence restraining order can be sought by the police on your behalf by telephone, at any time, any day. Your first action in urgent situations should be to call the police. If considered appropriate, the police will then seek an urgent telephone hearing with a magistrate.
There is no fee payable when you apply for a violence restraining order. However there is a fee for the lodgement of a misconduct restraining order. If you are experiencing financial difficulties, apply to the clerk of courts for a waiver of the fee.
Where an application for a violence restraining order is made in person to a court, you can choose to have the initial hearing of the matter without the other person being present. At this hearing the court may:
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make an order of 72 hours duration or less, which must be served on the person against whom the order is made within 24 hours of the making of the order or it lapses;
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make a temporary order of more than 72 hours duration. The person on whom the order is served has 21 days after service to lodge an objection to the order. If an objection is received in this time the matter will be listed for further hearing with both parties present. If no objection is received in the period, the order becomes final and remains in effect for the period specified in the order or, if no period is specified, for 2 years;
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adjourn the matter to a hearing date; or
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dismiss the application.
Alternatively, you may ask that your application proceed to a hearing in the presence of the other party. If in the hearing the court is satisfied that reasonable grounds exist for the making of the order, it will make a final order.
Where a violence restraining order is sought by a police officer on your behalf (whether or not by telephone) the magistrate may make similar orders to those made if the application was made in person. Telephone orders only remain in force for 3 months, or less if specified in the order.
Applications for misconduct restraining orders can only be made to the Magistrates Court or Children's Court (as applicable). Hearings for these applications can only proceed after a summons has been served on the respondent. Any order made only remains in force for a period of one year, or less if specified in the order.
When hearing an application, the court will require evidence on such matters as the actions or conduct of the respondent which have caused the order to be sought, the circumstances of the parties, the welfare of children, the addresses of parties, whether there is a history of actions or conduct of a similar nature and the effect of any orders made.
It is important that you inform the police and the court if any orders have been made between the parties in the Family Court or any other court.
Service involves bringing the content of an order or summons to the attention of the person to whom it refers. This is generally done by handing a copy to the person. This is the responsibility of the police.
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Legal Aid WA Domestic Violence Legal Unit: phone 9261 6254
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Victim Support Service: phone 9425 2850
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Western Australia Police Service: phone 131 444
We can assist you in applying for or responding to an application for a restraining order.
We will assess your requirements and give you an obligation free estimate of further costs at a short consultation. Telephone 9220 4437 to arrange an appointment.
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