Violence Restraining Orders
Family Violence and COVID-19
Staying at home has been touted as the solution to slowing the spread of COVID-19, but this also increases risk for victims of family violence. Yesterday, the McGowan Government acknowledged this heightened risk by passing amendments to restraining order legislation.
These amendments allow the Family Court to make interim restraining orders on an ex-parte basis (i.e. without the person you are seeking the order against being present). Restraining order applications can now be lodged online, and the penalty for a breach of a family violence restraining order has been increased to $10,000.Click here to read the McGowan Government's media release about the amendments for more information.
When enough is enough: applying for a violence restraining order
There are two main types of violence restraining orders in Western Australia: Family Violence Restraining Orders (FVRO) and Violence Restraining Orders (VRO). Both require an application to your local Magistrates Court or possibly the Children’s Court.
You should apply for an FVRO if you require protection from a person who you are or were in a family relationship with, for example a former husband/wife, de-facto partner, or someone you are related to.
You should apply for a VRO if you require protection from someone with whom you are not in a family relationship, for example a work colleague.
You do not need to have experienced physical violence or the threat of physical violence to apply for a VRO or FVRO. A VRO/FVRO can be made on the basis of other sorts of behaviour that coerce or control you or cause you to be fearful.
When you apply, you can ask the Court for an interim FVRO, which is a temporary order that is in place while you go through the process of obtaining a final FVRO.
The process usually constitutes:
- An application and affidavit in support;
- A court hearing for the interim VRO if you apply for one (at which the other party will not be present);
- If you are granted a VRO, the police will then serve it on the other party (the person bound)
- If the other party files an objection to the VRO, there will likely be a ‘mention’ hearing, followed by a final hearing. The interim VRO remains in place until the final order hearing.
If the other party breaches either the interim of final VRO, it is a criminal offence.
If you would like further information about applying for a VRO, please contact Kavanagh Lawyers on 6557 5888 or email reception@kavlaw.com.au.
What is family violence?
When most people think of family violence, they envisage physical harm being inflicted on another person. Under the Family Law Act and the Restraining Orders Act, the definition of family violence is much more expansive and extends to things as emotional abuse, financial abuse, stalking and derogatory remarks. Such definitions focus not only on violence but also the threat of behaviour that coerces, controls, or causes fear.
One of the most common consequences of family violence is low self-esteem and a desire not to be seen as a “victim”. It can be very difficult to reach out. If you are experiencing family violence please seek help. Maybe it’s a friend to start with. In time you may have the strength to contact one of the many agencies that are there to help.
When is family violence relevant?
Family violence in relation to adults is generally dealt with in your local Magistrates Court and the Family Court.
FVROs
Applications for FVROs should be filed at your nearest Magistrates Court. An FVRO will be issued where the Court is satisfied that family violence has occurred or there are reasonable grounds to believe that family violence may occur. The person protected by the FVRO is referred to as the person protected, and the person restrained is referred to as the person bound.
The Court will usually make an interim FVRO while you await the final order hearing (like a trial) for a final FVRO which will generally last for two years.
Any order of the Family Court that is inconsistent with an FVRO will override the terms of the FVRO in relation to times spent with a child. This means that if a child is protected by a FVRO but is ordered by the Family Court to spend time with the person bound, them spending such time with the child will not constitute a breach of the FVRO.
Children’s matters in the Family Court
The Family Court will take into consideration family violence in determining what is in the best interests of the child. The Court will ultimately aim to prevent the child from being subjected or exposed to family violence in making orders in family law proceedings.
Usually, a rebuttable presumption that equal shared parental responsibility is in the best interests of the child applies in such proceedings. This means that the Court will assume, absent evidence to the contrary, that it is in a child’s best interests for both parents to be equally involved in making long-term decisions regarding the child.
However, the presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. In such circumstances, the Court may no longer assume that equal shared parental responsibility is in the best interests of the children. The Court may order that the other parent have sole parental responsibility for the child. The perpetrator will no longer be entitled to be involved in making long-term decisions regarding the child, such as where they go to school or where the child lives.
If you wish to obtain legal advice in relation to children’s matters, please contact Kavanagh Lawyers on 6557 5888 or email reception@kavlaw.com.au.
What does “3 strikes and you are out” mean in relation to a VRO in Western Australia?
The Law
In its decision in Roe v D’Costa [2014] WASCA 118 the WA Supreme Court of Appeal provided clarification on how section 61A of the Restraining Orders Act 1997 (WA) should be interpreted in relation to a VRO in Western Australia. Section 61A states as follows:
61A. Penalty for repeated breach of restraining order
(1) In this section —
conviction —
(a) includes a finding or admission of guilt despite a conviction not being recorded under the Young Offenders Act 1994 section 55; and
(b) does not include a conviction that has been set aside or quashed.
(2) This section applies if a person —
(a) is convicted of an offence under section 61(1) or (2a) (the relevant offence); and
(b) has committed, and been convicted of, at least 2 offences under section 61(1) or (2a) within the period of 2 years before the person’s conviction of the relevant offence.
(3) This section applies despite the Sentencing Act 1995 and the Young Offenders Act 1994.
(4) Except as provided in subsection (6), if the person is a child a penalty must be imposed on the person for the relevant offence that is or includes —
(a) imprisonment under the Young Offenders Act 1994 section 118(1)(a); or
(b) detention under the Young Offenders Act 1994 section 118(1)(b).
(5) Except as provided in subsection (6), if the person is not a child a penalty must be imposed on the person for the relevant offence that is or includes imprisonment.
(6) A court may decide not to impose a penalty on the person that is or includes imprisonment or detention, as the case requires, if —
(a) imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and
(b) the person is unlikely to be a threat to the safety of a person protected or the community generally.
(7) A court that does not, because of subsection (6), impose a penalty on a person that is or includes imprisonment or detention must give written reasons why imprisonment or detention was not imposed.
(8) In subsection (7) —
written reasons includes reasons that are —
(a) given orally and subsequently transcribed; or
(b) given orally but also recorded electronically in a format that enables them to be subsequently transcribed.
[Section 61A inserted by No. 32 of 2011 s. 15; amended by No. 20 of 2013 s. 118.]
The Facts
The Appellant had committed breaches of a VRO on 3 July and 11 July 2012. Significantly however, on 13 July 2012 the Appellant was convicted on both breaches. Before the issue of mandatory imprisonment can be considered under what is popularly known as the “three strikes” rule, section 61A(2)(b) requires as a pre-condition that the offender has:
“Committed, and been convicted of, at least two offences…”
Before the Magistrates Court the lawyer for the Appellant argued that as the offences of 3 and 13 July 2012 resulted in a single conviction on 13 July 2012 the requirement of 2 prior convictions had not been made out. The Magistrate rejected that submission and sentenced the Appellant to 8 months immediate imprisonment.
The Decision
The Court of appeal ultimately ruled in the Appellant’s favour deciding that the conviction for the two breaches on 13 July 2012 was one conviction and therefore the Appellant had not met the pre-condition of 2 previous convictions.
At paragraph 52 Mazza JA (with whom McLure P and Buss JA agreed) concluded:
Section 61A(2) of the ROA should be construed having regard to Coke’s principle. Parliament has not clearly abrogated that principle. In my opinion, s 61A(2) requires that the relevant offence in s 62A(2)(a) be committed after the offender has committed and after he or she has been convicted of the threshold offences referred to in s 61A(2) (b) and that the ‘at least 2 offences’ referred to in s 61A(2)(b) must be, within the two year period prior to the offender’s conviction for the relevant for the relevant offence, committed on separate days and the subject of convictions on separate days. This did not occur in the present case. Accordingly, s 61A(2) was not enlivened and the respondent was not subject to the presumptive penalty of imprisonment. No material error has been demonstrated on Hall J’s part. The ground of appeal has not been made out. It follows that the appeal must be dismissed.
Therefore, the proper interpretation of the phrase ‘at least 2 offences’ referred to in s 61A(20(b) means offences committed on separate days and the subject of convictions on separate days.
At the time of writing Parliament has not amended s 61A(20(b) of the Restraining Orders Act.
WA Government to introduce new family violence restraining order
The ABC News Website has reported that a new type of restraining order is being introduced by the Western Australian Government to better protect family violence victims .
The Family Violence Restraining Order
According to Attorney-General Michael Mischin, the Family Violence Restraining Order (FVRO) was designed to reduce the onus on the victim to provide evidence of intimidating or controlling behaviour, and Courts will be required to consider information from police and other agencies including the Department for Child Protection in assessing a person’s risk. The court would then apply conditions specifically tailored for family violence, such as mandatory counselling.
The laws will be introduced later this year.
You can read the full detailed article here: New family violence restraining order set to be introduced by WA Government
Government to review domestic violence laws
The Western Australian Government is examining key recommendations from a Law Reform Commission report which includes separating family and domestic violence orders from the existing Restraining Orders Act. The report recommends treating it as a criminal offence under the Criminal Code and creating clearer definitions of what constitutes domestic violence. An article, appearing on the West Australian website on June 25th, reports that as well as considering this recommendation, it also wants Cyber-stalking to be included in the legal definition of domestic violence.
Violence Restraining Orders – domestic violence orders
Whether you need to apply for the restraining order and are seeking to be protected, have orders made against you, or are charged with a breach, Kavanagh Family Lawyers can help.
Next Steps
Call Kavanagh Lawyers on (08) 6557 5888.
VROs: Court of Appeal sets aside narrow definition of “Intimidation”
VRO Decision
In a unanimous decision* on 18 June 2014 the Western Australian Supreme Court of Appeal set aside the District Court decision in Walsh v Baron.**
In the District Court decision Staude DCJ held that the use of legally available procedures such as:
- Making multiple interlocutory applications in VRO proceedings
- Complaining about the Applicant (the person protected by the VRO) to a professional complaints body
- Commencing minor claims proceedings against the Applicant; and
- Making a perjury complaint to police about the Applicant
was not capable of constituting “An Act of abuse” [intimidation] under section 11 of the Restraining Orders Act 1997 (WA). The Court of Appeal rejected the Staude DCJ’s conclusion and stated as follows:
To threaten and/or take detrimental action against a person to achieve a collateral outcome is improper (at least) and is to behave in a manner that is intimidating, even if the action involves a person availing himself of legally available procedures.
… recourse to legally available procedures without more will not ordinarily constitute an act of abuse under s 11A of the ROA. However, the intent or purpose with which legally available procedures are threatened or used can result in the commission of a tort (malicious prosecution, abuse of process)or a criminal offence… Further, the commencement or maintenance of legal proceedings for improper collateral purpose is a tort… A knowingly frivolous and vexatious claim is also an abuse of process. ***
The Court of Appeal decision, in the writer’s view broadens (or perhaps restores) the definition of acts that could constitute intimidation under the Restraining Orders Act. The decision further puts the conduct of a respondent ( the person bound by a VRO/MRO) into the spotlight if that person for example takes out a tit-for-tat VRO/MRO; tries to sue the Applicant or complains the Applicant’s employer/professional body for ulterior purposes. In future, the Magistrates Court is likely to focus more on the intention behind the fact of bringing a legal action against an Applicant.
*Baron v Walsh [2014] WASCA 124
** Walsh v Baron[2012] WADC 165
*** McLure P at pars 65 and 65.
The Restraining Orders Act 1997 (WA) annotations
Kavanagh Lawyers’ principal, Marty Kavanagh, has just had his 20 annotations on The Restraining Orders Act 1997 (WA) published as part of a significant update to Dickey’s Family Law with Legislation. This new authored content provides concise annotations, and are structured to help practitioners reach the information they need as quickly as possible. Read more about the update here.
Marty Kavanagh and the lawyers at Kavanagh Family Lawyers have vast experience in dealing with restraining orders. We can provide advice and court representation at any stage in the process of obtaining or defending violence restraining orders and can assist in negotiating agreements in an attempt to reduce the stress that litigation can cause.
Next Steps
- Call Kavanagh Lawyers on (08) 6557 5888.
Restraining Orders
There are 3 types of restraining orders that can be granted in Western Australia. The most well known of these is the Violence Restraining Order or VRO. This is designed to stop any future threats, property damage, violence, intimidation and emotional abuse. Violence retraining orders can be served against people in a family or domestic relationship, and against people not in a family or domestic relationship.
A misconduct restraining order (MRO) is the second type of restraining order. It an order of the court designed to stop someone behaving in a way that can be offensive or intimidating towards another. It can also prevent someone from causing damage to a person’s property or acting in a way that may lead to breeching of the peace.
The third type of restraining order is a Police Order. Police can make an on the spot restraining order in situations of family and domestic violence. A police order may be made for up to 72 hours.
Kavanagh Family Lawyers can help with all types of restraining orders
Whether you need to apply for the restraining order and are seeking to be protected, have orders made against you, or are charged with a breach, Kavanagh Family Lawyers can help.
Next Steps
Call Kavanagh Lawyers on (08) 6557 5888.
Misconduct restraining orders
What is a misconduct restraining order?
A misconduct restraining order (MRO) is an order of the court designed to stop someone behaving in a way that can be offensive or intimidating towards another. It can also prevent someone from causing damage to a person’s property or acting in a way that may lead to breeching of the peace.
A misconduct restraining order is only applicable to someone you are not in a family or domestic relationship with. If you are in a family or domestic relationship with the person you want a restraining order for, then you’ll require a violence restraining order.
Depending on the circumstances of each case, a misconduct restraining order may include conditions to stop a person doing whatever the court thinks is necessary.
Kavanagh Family Lawyers can help with misconduct restraining orders
Whether you need to apply for the misconduct restraining order and are seeking to be protected, have orders made against you, or are charged with breaching a MRO, Kavanagh Family Lawyers can help.
Next Steps
- Call Kavanagh Lawyers on (08) 6557 5888.