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Restraining orders

1          What are the different types of restraining order and which one should I apply for?

2          How do I get a restraining order?

3          How do I cancel or vary a restraining order?

4          What can I do if someone has applied for a restraining order against me?

5          What happens if a restraining order is made against me?

 

1          What are the different types of restraining order and which one should I apply for?

Misconduct Restraining Order

Violence Restraining Order

Police Order

An order given by the court designed to stop a person behaving in a way that is intimidating or offensive towards you or damaging your property

You must be able to show that the person you want the order against is likely to:

·         Behave in a way that could be reasonably expected to intimidate or offend you or that would actually intimidate or offend you.

·         Cause damage to your property or someone else’s property that you are using or for which you are responsible.

·         Behave in a way that is, or is likely to disrupt the peace.

 

You cannot apply for a misconduct restraining order against someone you are in a family or domestic relationship with (this includes your parents, guardians, other relatives and potentially your girlfriend or boyfriend).

 

An order given by the Court designed to stop threats, property damage, violence, intimidating behaviour and emotional abuse.

You must be able to show that the person you want the order:

·         Has committed an act of abuse against you and is likely to do so again, or

·         You reasonably fear they will commit an act of abuse against you.

Abuse includes any assault, act that causes injury, stalking, holding another person against their will or threatening to do any of those things.

 If the person you are applying to have an order against believes they are in a domestic relationship with you, then even if they aren’t, it is an act of violence to damage your property, injure or kill your pets, or behave in a way that is frightening, offensive or emotionally abusive towards you.

An order given on the spot by police in situations of family and domestic violence.

A police order may prevent the offender from coming near you, your home and your workplace.

This will give you time to attend court and apply for a restraining order.

2          How do I get a restraining order?

     If you are over 18, you can apply for a misconduct or violence restraining order through any Magistrates Court. If you are under 18 you can apply to the Children’s Court of WA. A guardian, police officer or child welfare officer may apply for you. The forms you need to apply can be found here. When you hand it in at the Magistrates Court, the Court will fix a date for a hearing. The police will inform the respondent (the person who you need protection from) of the hearing. If the respondent attends and agrees with the application, the Court will make an Order. If the respondent attends the hearing and does not agree to the application, the court will make a date for a trial. If the respondent does not attend, the Court may hear the application in their absence. If an order is made, the police will inform the respondent.

     The process for a obtaining a police order is different. You cannot apply for a police order, it is issued when the police are concerned about the safety of a person but cannot arrest or charge the party who the order is against.

3          How do I cancel or vary a restraining order?

     You can make an application to the Court to cancel or vary an order using this form. The Court will then fix a hearing date (usually in about four weeks). At the hearing, the Court will decide whether to vary the order.

4          What can I do if someone has applied for a restraining order against me?

           When you are told that there is an application for a restraining order against you, you will be given a time and date for a formal court hearing. At that hearing you can do one of three things:

o    Consent to the order: the order will be made as requested in the application (this does not mean that you agree that you have or are likely to do anything alleged by the person applying for the application).

o    Contest the application: You will need to go to a further hearing called a contest hearing, where you can tell your side of the story. The magistrate will then decide whether or not to cancel the application.

o    Not go to court: the magistrate will make a decision without you being there on whether the restraint order shall be issued.

5          What happens if a restraining order is made against me?

           Having a restraining order against you is not a criminal offence and will not go on your criminal record, but breaching the terms of a restraining order is a criminal offence and may go on your criminal record.

           The maximum penalty for breaching a misconduct restraining order is a fine of up to $1,000.

           The maximum penalty for breaching a police order or a violence restraining order is a fine of up to $6,000 or imprisonment for up to 2 years, or both.

           It is important that you read the terms of any restraining order against you very carefully and do not do anything inconsistent with the terms of that restraining order. You should not do something inconsistent with a restraining order even if the person who the order is aimed at protecting consents to, encourages you to or asks you to do that thing.

           For example, if you are prohibited from communicating with a person do not answer their calls or reply to their SMS messages or else you may breach your restraining order. If the person being protected would like you to behave in a way which is inconsistent with the restraining order they can seek to have it removed or changed.

 

NCYLC would like to express thanks to the law clerks and volunteers who assisted with the preparation of this material: Ray Aryal, Hayley Johnson, Jaslyn Ng, Katherine Warner.

 

This page was last updated in January 2017.

 

   
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