The following is a summary of the key points arising from Marty Kavanagh, Kavanagh Lawyers WA paper to the 2013 Law on the Lounge Family Law Conference, Bali 2013.
VIOLENCE RESTRAINING ORDERS: A FEW THINGS WORTH KNOWING ABOUT VROs
1. The recent statistics on VROs reveal that:
- Applications for VROs over the period 2008 to 2012 have been relatively static if not marginally in decline.
- Consistently, more than 25% of VRO applications are either dismissed or not granted.
- Sentencing rates for VRO breaches are high and are likely to continue to climb.
2. The purpose of restraining orders is not to protect people from the emotional fallout of a failed relationship, which may be bitter, spiteful and unpleasant Walsh v Barron  WADC 165
3. The purpose of restraining orders is to protect people from violence in the form of acts of abuse which, include behavior that is progressively and continuously, not occasionally, intimidating, offensive, or emotionally abusive. Walsh v Barron  WADC 165
4. There is currently no certainty as to which court has jurisdiction (exclusive or otherwise) to make a VRO protecting a child in WA.
5. The consensus view seems to be that:
(a) If the Respondent or Applicant is a child and no adult parties are involved the application must be determined in the Children’s Court.
(b) If an adult seeking protection also seeks to extend that protection to his/her child then the Magistrates Court may determine the matter.
(c) Some judicial officers in the Magistrates Court are refusing the extend VROs to children because they believe the Children’s Court has exclusive jurisdiction. In these circumstances separate applications (and hearings) apply in the Magistrates Court and the Children’s Court.
6. Where the Court grants an interim VRO on an ex-parte basis it is questionable whether the Court has the statutory authorization to also list the matter for a Mention Hearing per Kickett v Starr  WADC 52
7. Where the Court grants an interim VRO on an ex-parte basis the next hearing (absent an application to vary or cancel) should most likely be a final order hearing. Kickett v Starr  WADC 52
8. Recent listing procedures indicate that the courts are starting to list ex-parte VROs (after the Respondent has objected) directly to final order hearings.
9. In finalizing restraining orders by consent at a Mention Hearing pursuant to s 41 of the Act consideration needs to be given as to whether the Mention Hearting has been statutorily authorized pursuant to s 29(1). Kickett v Starr  WADC 52
10. Leading propositions of law, particularly those detailed in Low v Weber; McWaters v Shirley & McKenzie v Picken are still good law, but need to be considered in the context of the pre-2004 amendments which required apprehended violence as a pre-condition for the granting of a VRO. Walsh v Barron  WADC 165
11. Purporting to apply to take out a VRO against the Applicant, threatening defamation proceedings or making bringing a court claim for a debt were not determined as offensive or intimidating conduct. Walsh v Barron  WADC 165
12. The requirement for ongoing intimidating and offensive conduct is essential. “Ongoing” means “progressive, continuous and current.” Any intimidating and offensive conduct in a relationship does not necessarily constitute an act of abuse. A VRO is not punishment for past behavior. Walsh v Barron  WADC 165
13. Behaving in an “offensive” manner means: “hurtful, harmful and injurious” rather than ‘merely’ “displeasing, annoying, insulting, disgusting, nauseous’ Walsh v Barron  WADC 165
14. The statutory 2 year duration of a VRO should not be departed from without good reason. Walsh v Barron  WADC 165
You can view the full paper presented to the 2013 Law on the Lounge Family Law Conference, Bali 2013 here…
You can read more about how Kavanagh Family Lawyers can help with Violence Restraining Orders here…