In the event that a person is violent or threatening towards you or your property, or if someone is harassing or intimidating you and you are concerned that their behaviour will continue or put your safety at risk, you can apply to the Court to have a Restraining Order taken out against that person.
What is a Restraining Order?
Restraining Orders are Orders granted by the Magistrates Court (or sometimes the Family Court) to protect one person or persons (the Applicant) from another person (the Respondent).
There are several types of Restraining Orders which can be granted under the Restraining Orders Act, being;
- A Violence Restraining Order
- A Misconduct Restraining Order; or
- A Family Violence Restraining Order
The final category is only available if the parties are or were in a family relationship, which broadly includes de-facto and married relations, blood relatives, step-relatives and adopted or foster relatives in most circumstances.
In order to be granted permanently, the court must be satisfied that the Applicant:
a) has experienced family violence as defined in the act committed against them by the Respondent; and
b) has a reasonable fear that family violence will be committed against them in the future by the Respondent if the Order is not granted.
Before the matter proceeds to Final Order Hearing, which is the point at which evidence can be led by both parties, the court encourages the parties to come together to try to resolve the proceedings. Given the restraints imposed by the Restraining Order, this is best and most easily achieved through solicitors, before either party incurs fees and spends time preparing for a full hearing.
Our lawyers accept instructions to act for both Applicants and Respondents and can assist at all stages of the Restraining Order process, including negotiations and representation at hearings.
If you are bound by a Restraining Order, a breach of the order is considered a serious criminal offence. A second breach can result in immediate imprisonment if you are denied bail.
How Do I Apply for a Restraining Order in Perth?
An application for a restraining order can be made by:
- A police officer on behalf of a person or a group
- The person seeking to be protected
- A parent or guardian of a child or; and
- A guardian of a person.
A person who applies for a restraining order may first have an ex parte hearing to determine whether an interim restraining order should be made. The person bound by the restraining order does not have to be present at the ex parte hearing.
If an interim restraining order is made, the person bound by the order has 21 days from the date of service of the order to lodge an objection, otherwise the restraining order will be automatically continued for 2 years.
If an objection is lodged, the Court will list the matter for a final order hearing to determine whether the restraining order should be cancelled or continued. The person bound by the order is required to attend the final order hearing. A final restraining order generally lasts for the period of two years.
Before proceeding to a final order hearing, the parties should consider whether the matter can be resolved by the person bound by the order giving an undertaking or promise to the Court. If an undertaking to the Court is breached, the Court finds that breach persuasive evidence that a restraining order should be made if a further application is made.
