Western Australia - Restraining Orders
If someone is violent to you, threatens you or your property, 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 against the law for that person to come near you or your property. If they did, then they would be committing an offence.
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.
The "applicant" is the person applying for a restraining order.
The "respondent" is the person against whom the order is made.
An application for an order may be made by:
 | A police officer on behalf of a person or a group of the public, |
| The person seeking the protection of the order, |
| The parent or guardian of a child |
| The guardian of a person. |
Applications for either type of order can be made by attending at a Court of Petty Sessions (or, where the respondent is a juvenile, 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.
For further information.
For urgent assistance, or to request that police make an application on your behalf, contact 9222 1111 (Police Headquarters) or 13 1444 (local Police station).
Information on court processes is available on the Court of Petty Sessions page.
For legal advice or assistance:
· contact your solicitor,
· the Legal Aid Domestic Violence Unit on (08) 9261 6254 or 9261 6320,
· your nearest Community Legal Centre (link to resources page, WA),
· Aboriginal Legal Service (link to resources page, WA),) or
· Women's Legal Service (link to resources page, WA),)
What is a protection order?
Protection orders (called restraining orders in Western Australia) are orders made under State or Territory laws that provide a quick and flexible method of obtaining legal protection from many forms of violence or unacceptable behaviour, for example:
| Physical abuse, e.g. using physical force |
| Sexual abuse, e.g. forced sexual activity |
| Psychological abuse, e.g. humiliation, intimidation |
| Property damage. |
What laws apply?
The Restraining Orders Act 1997 (WA) allows for two types of restraining order:
| Misconduct Restraining Orders, which usually last for 12 months. |
| Violence Restraining Orders, which usually last for 24 months. |
| Violence Restraining Orders | ||||
Violence restraining orders are
the more serious of the orders and are intended to restrain a person who:
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. 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 an urgent situation 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. When a violence restraining order is made, the court or magistrate will also make an order prohibiting the respondent from having a firearm licence or any guns. It is therefore essential that you inform the police or court if you are aware that the respondent has access to a gun. A firearms order may also be made at the hearing of a misconduct restraining order. |
Who can apply?
You can apply for a restraining order if you can show that one of the following types of violence has occurred and is likely to occur again:
| Physically injury or threats to injure you. |
| Damage or threats to damage your property. |
| Offensive or provocative acts towards you. |
| You have been intimidated or harassed. |
How to apply
An application can be made to a Court of Petty Sessions by:
| You (if you are over 18 years) |
| By your parent or guardian (if you are under 18 years) |
| A solicitor, friend, support worker who is authorised by you |
| A police officer. |
You can also apply by telephone.
| Service of Summonses and Orders | ||||||||||||||||
| 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 In the case of telephone orders, the police will also arrange service. This is generally done by the police station nearest to where the respondent lives. It is important that you provide to the police as much detail as you can to assist with the service of the documents and tell them immediately of any information, such as change of address. Regular contact should be maintained with the police station nearest to the respondent to ensure service occurs. If by the week before the hearing the summons has not been served you should ring the Police District Superintendent. It is important to remember that a matter listed before the court for hearing cannot proceed unless the person summoned has been served and any order made by the court does not come into effect until it has been served.
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| Hearing Applications | ||||||||||||||||
| When hearing an application, the
court will require evidence on such matters as
· the actions or conduct of the respondent who has caused the order to be sought, · the circumstances of the parties, · the welfare of children, · the addresses of parties, (link to section on keeping address private) · 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 tell the police or the court if any orders have been made between the parties in the Family Court or any other court. Orders can be made to cover a wide range of situations and can include a direction that the respondent:
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:
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 a Court of Petty Sessions 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. |
Types of order
Various orders can be made. For example, an order can:
| Prohibit contact with you at home or work. |
| Prohibit a person behaving in certain ways. |
| Limit contact (for example, when the other person is drunk). |
| Prohibit acting in an offensive manner. |
| Prohibit damage to property. |
| Prohibit a person being in possession of a firearm. |
The order can be written to suit your situation.
Breaching an order
The order is a civil order but breach of an order may be a criminal offence. Contact the police if there is breach of this order. They can take action against a person who breaches a restraining order.
| Change or Cancellation of Orders | ||||||||||||||||||
| Any person who obtains an order,
or the person against whom the order is made, may apply for a variation or
cancellation of a final order. If the application is made by the person
against whom the order is made, the court must first hold a hearing (in the
absence of the person for whose benefit the order was made) to consider
whether sufficient grounds exist to permit the application to proceed. If the court grants approval to proceed, then both parties have to attend the next hearing. |
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| Support for Victims | ||||||||||||||||||
| The Department of Justice offers
a number of services for victims of crime. The Victim Support Service, part of the Department's Court Services Division, offers a confidential service for victims of crime, and provides flexibility with professional counsellors, trained volunteers, and a network of information and service providers. The Victim Support Service can:
The Department of Justice also offers mediation between victims and offenders through the Victim Offender Mediation Unit, coronial counselling through the Coroner's Court and comprehensive information on restraining orders and compensation. Contact Details Victim Support Service |
Restraining orders and child contact
Where there is a restraining order in place, or one is needed, difficulties can arise for people who also have residence/contact orders through the family law system. If a court makes a residence/contact order that conflicts with a restraining order, the residence/contact order takes priority. The restraining order will still stand, but any part that is inconsistent will be over-ruled by the residence/contact order.
For example, if you have a contact order that gives the father contact on weekends but the restraining order only allows contact between the father and child on Saturday, you have a conflict about contact on Sunday. The contact order will over-rule the restraining order and contact will happen for the entire weekend.
This situation can weaken the restraining order and also make it more difficult for the Police to enforce.
Restraining orders may be modified by the court to take into account the practical arrangements for contact. Alternatively, contact orders can be made to take into account restraining orders, for example, by arranging for an independent person to be present during contact hand-over times.
A magistrate cannot usually make orders about children in relation to residence, contact and specific issues if there is any dispute between the parents. However, if a woman applies for a protection order or a variation of her protection order, then the magistrate may at the same time make or vary the terms of her existing Family Court contact order to make it safer for her and the children when contact takes place. The magistrate can also discharge or suspend an existing Family Court order, if among other things, the magistrate is satisfied it would be too unsafe for the woman or her children if contact continued.
If you have Family Court contact orders in place before you have a domestic violence protection order, try to seek legal advice about whether these laws apply to you before you apply for your protection order.
You May also want to check The Australian government attorney general's department website http://www.familylaw.gov.au/accesspoint/ (search 'protection orders') As some States are currently reviewing protection orders. (Specifically WA and Tas as of June 2004).
