What is a Restraining Order?

A Restraining order is an order of the Magistrates Court preventing a person (the Respondent) from communicating with, being in the presence of or in some cases living or working at the same address as another person (the Applicant).

Restraining orders fall into three categories:

  • Violence Restraining Orders;
  • Misconduct Restraining Orders; and
  • Police Orders (of 24 or 72 hour duration).

Many VROs are made on an interim (temporary) basis and the hearing is often held ex-parte (without the Respondent being present).

Misconduct Restraining Orders are made when both parties attend court.

Police Orders are made at the discretion of polices officers.

A few points worth knowing about Restraining Orders

  • Some 75%+ applicants for interim VROs are successful. This is because the threshold test is very low and the Respondent is generally not at the interim hearing.
  • Justices of the Peace or Magistrates hear applications for interim orders.
  • In our experience it is quite difficult to convince a Magistrate to extend an interim VRO to children. It is not quite as difficult to convince Justices of the Peace.
  • Justices of the Peace cannot determine a final order hearing. Final Orders are decided by Magistrates.
  • In our experience, at a Final hearing the Court often forms the view that a large proportion of VROs are in effect matters for the Family Court and this is a significant factor in the dismissal of so many interim orders.
  • Only 15% of interim VROs that are defended result in final
  • Each case depends on its own merits and the statistics provided (from the Magistrates Court) are only a general guide.
  • In our view it is reasonable to conclude that the granting of an interim VRO is no indicator that a final order will be made.
  • It is reasonable to conclude that final order VROs are extremely difficult to obtain.
  • Predicting the outcome of a VRO final order hearing is fraught with difficulty. Much depends on the presiding Magistrate, the availability of independent corroborating evidence, (“she said/he said” is not the best evidence) and how well you perform in the witness box (sometimes under robust cross-examination).

Grounds for a VRO

To be successful in obtaining a VRO (on an interim or final basis) you must satisfy the Court that:

(a) The Respondent has or is likely to commit an act of abuse against you;

(b) Unless the Respondent is restrained he/she is likely to commit a further act of abuse against you or you reasonably fear she/he will do so; and

(c) It is appropriate in all the circumstances to make an order for a VRO

How long does a Restraining order last for?

  • VROs generally operate for 2 years
  • MROs general operate for 1 year
  • Police Orders generally operate for 24 or 72 hours.

How do I apply for a Restraining Order?

  • Consult a lawyer or apply in person at a Magistrates Court in WA.

I’ve been served with a VRO. What do I do?

  • Consult a lawyer
  • Consider whether you should object to the order being made final for 2 years.
  • Order a copy of the transcript of the interim hearing.

KAVANAGH LAWYERS

At Kavanagh Lawyers we have extensive experience in all aspects of Restraining Orders. Our Marty Kavanagh writes the VRO professional commentary for Thomson Reuters and he has written several articles on the subject which can be found under “publications” on our website.

Next Steps

  • Call Kavanagh Lawyers on (08) 6557 5888.

The lawyers at Kavanagh Lawyers know how important it is to obtain legal advice before trying to negotiate any property settlement with your spouse or partner. When a breakdown of a marriage or de facto relationship occurs, the division of property and other assets becomes critically important to the financial future of both parties. The Family Court is obliged to divide property, assets and financial resources of parties to a marriage or de facto relationship (including most same-sex relationships) in a way that is equitable and fair.
Some property settlements can be reasonably straight-forward, while others can be extremely complex. Kavanagh Lawyers can provide practical and realistic advice on your entitlements, with a view to achieving an appropriate settlement as quickly and efficiently as possible.
There is a range of options to achieve division including negotiated settlements, arbitration, mediation and, in cases where agreement cannot be reached, Court proceedings. Kavanagh Lawyers can advise on what likely entitlements will be considered equitable, in the event that the property settlement is judicially determined. Our focus is always on obtaining a positive, cost-effective and expeditious result.
If you don’t have a Binding Financial Agreement and your marriage or de facto relationship breaks down, the Family Court will divide your property and assess spousal maintenance by applying the laws contained in either the Federal Family Law Act 1975 or the Western Australian Family Court Act 1997.
Apart from superannuation, much the same laws apply to both de facto and married spouses.

Property Division Disputes

When deciding a property division dispute, the Family Court enters into a four step process, namely:

  1. Identify the nature and value of the property of the marriage/relationship.
  2. Look into the past to identify the financial and non-financial contributions of the parties and consider their entitlements, expressed as a percentage, based on their respective contributions.
  3. Consider whether there should be any adjustment to the parties entitlements in Step 2, based upon their present and future circumstances.
  4. Consider the effect of the findings in Step 2 and 3 and make an order that is just and equitable.

This procedure applies even though you may have reached agreement and wish to lodge consent orders with the Family Court for approval.
Although this process appears to be quite simple and logical, there is a large number of factors to consider, some of them extremely complex. For example:

  • What are the taxation consequences of your property division?
  • How are gifts, inheritances and superannuation to be treated?

Next Steps

  • Call Kavanagh Lawyers on (08) 6557 5888.

enduring power of attorneyAn enduring power of attorney is a legal document created to allow another person to make financial decisions on your behalf. This person becomes your attorney.  The attorney’s powers can come into effect immediately OR when the SAT declares you lack capacity to make your own decisions.  An enduring power of attorney can only be made while you are still capable of making financial and legal decisions for yourself.

Types of Attorneys

  • A sole attorney is one person appointed as the attorney.
  • Joint attorneys are two people appointed as attorney, who must act together and agree on the decisions that are made. If the joint attorneys disagree the decision will be made by the SAT.
  • A substitute attorney may only make decisions if the sole or joint attorneys are unable to do so.

Why create an Enduring Power of Attorney?

By appointing an enduring attorney, your property and financial affairs will be managed in your best interests and according to your wishes.

Lodgement with Landgate

If you have real property it is recommended that you also file an original of your enduring power of attorney with Landgate. Without doing so, your attorney will be unable to deal with your real property in the event that you lose capacity. Landgate charge a fee of $174.70 for the lodgement of an enduring power of attorney.

Administration Orders

An administration Order is an Order made by the State Administrative Tribunal appointing an administrator to make your financial decisions. The role of an administrator is similar to that of an enduring attorney. Administrators are subject to added scrutiny by, and reporting requirements to, the Public Trustee. Fees are usually incurred by an administrator.

Kavanagh Family Lawyers can help

Who you appoint as your attorney is a very important decision. This person will be responsible for managing your financial security and therefore the decisions this person makes, can have a significant influence on your lifestyle. Kavanagh Family Lawyers have extensive experience in enduring powers of attorney and can offer advice to help you with this decision and provide the procedures to act upon it.

Fixed fees

We offer the following fixed fees for the creation of an enduring power of attorney:

  • Individual – $195 + GST
  • Couple – $350 + GST.
  • Individual + enduring power of guardianship – $300+ GST.
  • Couple + enduring power of guardianship – $550 + GST.
  • Landgate filing fee (optional) – $70 + $174.70 inclusive of GST

Our fees include personalised advice and the drafting and execution of your enduring power of attorney. Should you wish for us to lodge your enduring power of attorney with Landgate we charge an optional fee of $70 in addition to Landgate’s lodgement fee of $174.70.

Next Steps

Call Kavanagh Family Lawyers on (08) 6557 5888 to speak to our lawyers.

willsKavanagh Family Lawyers have a wealth of experience in all aspects of Inheritance law including:

Wills

As a Will is the document which sets out a person’s wishes for his or her property to be disposed of in a particular way upon death, it is important for it to be valid. A will has to meet certain formal requirements which are prescribed by the Wills Act.

Next Steps

  • Call Kavanagh Lawyers on (08) 6557 5888.