The law places limits on acceptable behaviour towards others, whether they are family members, acquaintances, or total strangers. A person who breaches a restraining order, whether interim or final, can expect consequences that are on par with criminal actions.
The Restraining Order Act 1997 (WA) governs the majority of the legislative provisions regarding a restraining order in Western Australia. A restraining order puts certain restrictions on the behaviours of a person and this may include restrictions on communication or a prohibition from remaining within a specific distance from another party.
The penalties for breaching a restraining order can vary drastically, depending on the circumstances of the case. In addition, there is a “three strike” rule where the Court must consider whether a term of imprisonment is appropriate unless the offender can persuade the Court otherwise.
Other factors that can affect the penalties include:
- The prior good character of a person;
- The circumstances of offending;
- The aggravating factors;
- The mitigating factors;
- The seriousness of the offending.
- The insight of the offender;
- Whether the offender shows remorse;
- Whether there are changes made in the offender’s lifestyle;
- Whether the offender attended counselling, if available;
- Victim Impact Statement;
- The assistance and cooperation of the offender (if any) with the police;
- Any reports are written by experts for sentencing purposes;
- The Prosecution’s attitude towards the charges;
- The presiding judge/magistrate’s perception of the offender’s offending.
Types of Restraining Orders
There are three types of restraining orders in Western Australia
1.Misconduct Restraining Orders – also called (“MRO”), a misconduct restraining order may be issued in circumstances where the behaviour of another person towards you is not physically violent but makes you feel intimidated or offended.
2. Violence Restraining Orders – The violence restraining order or VRO may be granted in cases where a non-family member is engaging in behaviour that is considered “personal violence”. Further, the applicant can prove that the respondent has a propensity or a likelihood of behaving in such a manner. These may include but are not limited to:
a. Physical assault
b. Kidnapping
c. Stalking
d. Destruction of property
e. Threatening harm
f. Intimidating behaviour
If the applicant fails to succeed in a Violence Restraining Order, the Court may still consider whether an MRO is a viable option even if the applicant did not apply for an MRO in the first place.
3. Family Violence Restraining Order – also known as an “FVRO” may be granted in cases where a family member or an ex-partner is engaging in behaviour that is considered “family violence”. Further, the applicant can prove that the respondent has a propensity or a likelihood of behaving in such a manner. These may include but are not limited to,
a. Physical violence
b. Sexual violence
c. Coercion
d. Stalking
e. Threats against you or other family members
f. Intimidating behaviour
g. Destruction of property
h. Repeated derogatory remarks
i. Criminal damage
What are the Advantages of Having a Restraining Order?
A restraining order should be used as a ‘shield’ to prevent harm, threats, and acts of violence taken against the applicant. It should not be used as a ‘sword’ to incite a breach for any ulterior purposes.
Breaching a restraining order is a criminal offence and the police can arrest the suspect should there be prima facie evidence to prosecute the offender. Once the arrested suspect is prosecuted and depending on whether any admissions are made, the accused will have to face Court and enter a plea to the charge.
What is the Definition of Breaching a Restraining Order?
A person is guilty of breaching a restraining order if they deliberately do not comply or make an attempt to comply with the restrictions the order mandates. While being named in a restraining order itself is not a criminal offence, breaching an FVRO, VRO, or MRO is a crime.
It is not a defence to suggest that the offender incited a reaction, or provoked the offender to breach the restraining order. Whilst it may be a consideration at sentencing, it does not abrogate the fact that the offender (or respondent to the restraining order) must do all that is necessary to avoid a breach. Nonetheless, if the Respondent in a restraining order can prove that the applicant has provoked a breach, or used the restraining order as a ‘sword’, this is a just cause to apply to have the restraining order cancelled. Please note that other criteria must be met before the Court would entertain such an application.
What Are the Penalties for Breaching a Restraining Order in Western Australia?
The WA Police can investigate all reports regarding the breach of a restraining order or the suspected violation of an order.
The penalties for the breach can vary based on the circumstances. However, the maximum penalty for being found guilty of breaching a Violence Restraining Order or a Family Violence Restraining Order is two years in prison and a fine of $10,000.
The maximum penalty for breaching a Misconduct Restraining Order is a $1,000 fine.
If the person in question has breached a restraining order more than once in the past two years, they can be treated as a repeat offender. In the case of repeat offenders, the court is obligated to impose a sentence that includes a term of suspension or immediate imprisonment.
The actual circumstances of the case will determine the penalties imposed by the court. In the instance that a child family member experiences or are exposed to family violence as a result of the restraining order breach, the court may impose more severe penalties.
What are the Possible Defences for Breaching a Restraining Order?
- Dispute of facts; or,
- Any terms as prescribed in Part B of the specific interim Order, or Final Order.
Claiming ignorance about the restraining order or its contents is not a defence. The person charged should thoroughly review the order with their legal representatives as soon as possible.
Additionally, an accused/ person charged cannot defend a breach by saying that the other party invited him or her to visit or otherwise encouraged her to breach the order.
Even if these are accurate and can be proven, you are not absolved of guilt because of this. The court would see you as being the one in control of your actions, regardless of the invitations or enticements on the part of the other party. However, if these actions are proven true, the court may amend or cancel the restraining order.
If you have been accused of breaching a restraining order, you will need help from an experienced criminal lawyer. Breaches are sometimes defendable. However, you need to work with someone who understands the law and inner workings of the courts to be sure of getting the best possible outcome in your case. Reach out to WN Legal for assistance. Our FVRO/VRO lawyers and MRO lawyers can offer you a free 30-minute consultation so we can address your concerns and determine the best way we can help you.
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