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.
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.
- Call Kavanagh Lawyers on (08) 6557 5888.