Restraining Order Lawyer Perth (VRO & FVRO)

I need help! I have been assaulted/ someone has said (or done) something that affected me! Where do I go, and what do I do now?

Under the right circumstances, and with the right facts, the Court offers protection to victims of abuse. The Restraining Orders Act (1997) WA (‘Restraining Orders Act’) states that there are three types of restraining orders, namely:

1. Family Violence Restraining Order;
2. Violence Restraining Order; and,
3. Misconduct Restraining Order.

Each of these restraining orders have different elements. Because of these variations, please consult with a lawyer to determine which application suits you.

 

Violence Restraining Order vs Family Violence Restraining Order

In the past, one of the main elements that many applicants would elect to use in applying for a Violence Restraining Order is to prove that the Respondent has committed an act of abuse.

Before the amended Act came in to play in 2016, parties whom were in a prior, or existing, domestic relationship could apply for a Violence Restraining Order. With the amendments, the new Act now requires parties whom were in a domestic relationship to apply for a Family Violence Restraining Order.

 

Violence Restraining Order (VRO)

In the amended act, the Applicant in a Violence Restraining Order must prove that:

1. The Respondent has committed any of the following acts, and is likely again to commit the following (“acts of personal violence”):
   • Assaulting or causing injury to the Applicant;
   • Kidnapping or depriving the liberty of the Applicant;
   • Stalking the Applicant;
   • Threatening to do any of the aforementioned acts.

In the alternate, the Applicant must be able to prove that he or she has reasonable grounds to apprehend that the Respondent will commit any of the aforementioned acts.

The Applicant in a FVRO can no longer rely solely on the proof that the Respondent has behaved in an intimidating and/or offensive manner.

Even if the Applicant believes that he or she has a strong case, this does not mean that the Applicant will succeed at trial.

In most instances, these acts of personal violence would inevitably involve police presence, or criminal prosecution. The Respondent should seek legal advice as principles of Res Judicata can affect the restraining order case.

If the Applicant does not succeed in a Violence Restraining Order application, the Court can automatically consider whether a Misconduct Restraining Order application can be made in lieu of a Violence Restraining Order application.

A misconduct restraining order application is different compared to a Violence Restraining Order. The grounds for a Misconduct Restraining Order Application is not based on ‘acts of abuse’. Rather, the Applicant must prove that the Respondent has behaved in a manner that is intimidating or offensive, and that the Respondent is likely to behave in such a manner again. Or, the Applicant must prove that the Respondent would behave in a manner that the Court can reasonably expect to be intimidating or offensive.

If the act of personal violence is accompanied by a criminal prosecution, WN Legal will require these materials, as a mere “call to the police” may be questionable evidence that should be thoroughly cross examined to determine its veracity.

Any evidence that can be made available for the restraining order trial could bolster the case of either party.

 

Family Violence Restraining Order (FVRO)

Section 10D of the amended Act provides that any parties whom were in a domestic relationship will now need to satisfy a separate set of elements.

The Applicant in a Family Violence Restraining Order will now need to prove that the Respondent has committed any of the following acts, and is again likely to commit the following (“acts of family violence”):

1. Violence, or threat of violence by the Applicant towards a family member of the Applicant; or,
2. Any behaviour by the Respondent that coerces or controls the family member or causes the member to be fearful (including the Applicant).

The acts of family violence as described by the new act is not exhaustive and can include, but not limited to, any of the following against a family member:

1. Assault;
2. Sexual Assault;
3. Stalking or cyber-stalking;
4. Repeated derogatory remarks;
5. Damaging property;
6. Causing death or injury to an animal;
7. Unreasonably denying, or withholding financial autonomy that the member would otherwise have had;
8. Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at the time when the member is entirely or predominantly dependent on the person for financial support.

 

What is the process of obtaining a Restraining Order?

There are simple steps that you can take in order to obtain an interim order. However, an interim FVRO/VRO is only temporary until either:

1. If your application is not contested, the Court grants you a final restraining order for a prescribed period;
2. If your application is contested, the Court will list your matter for a trial hearing to determine the issues in dispute.

Step 1: Seek Legal Advice

If you have not sought legal advice, speak to our lawyers at WN Legal. Upon receiving legal advice, you can attend your nearest Magistrates Court registry and fill in an application form for a restraining order. Your matter will be heard at the court’s next available listing, or as soon as practicable.

Step 2: Hearing

At this hearing, the Justice of Peace or Magistrate will decide whether there is prima facie evidence to grant you an interim order. In essence, the court will decide whether an interim order is necessary to protect you until your matter is next listed in court.

Step 3: If you are granted an interim order.

Your matter will be listed for a ‘Final Order Directions’ Hearing. The purpose of this hearing is to determine whether the parties will settle or proceed with the matter to trial. It is important that you attend this hearing, or your matter will be dismissed if the Respondent is present, and you are not. The same rule applies vice-versa. During the directions hearing, the Court will hear submissions from respective counsel on housekeeping matters (please speak to us on what issues need to be determined prior to trial). The Court will then list the matter for a Trial Hearing, if ‘without prejudice’ negotiations fail.

Step 4: If you are not granted an interim order.

Your matter will be listed for a directions hearing/ status conference. Your matter will be dismissed if the Respondent is present, and you are not. The same rule applies vice-versa.   During the directions hearing, the Court will hear submissions from lawyers on housekeeping matters (please speak to us on what issues need to be determined prior to trial). The Court will then list the matter for a Trial Hearing, if ‘without prejudice’ negotiations fail.

Step 5: Preparation for Trial

A trial hearing requires a lot of preparation and a thorough understanding of the rules of evidence. You can choose to appear in pro se (self-represented). However, we always recommend that you engage us fore willing to settle or whether you intend to proceed to trial. It is important that you attend thi your trial as we have the necessary legal expertise to enhance your prospects of succeeding in your application or defending one.

Step 6: Trial Hearing

Please consult our WN Legal team for further information on what happens during a Trial Hearing.

 

Repetition and Propensity

If you require a violence restraining order or a family violence restraining order, it is best to first identify the repetitiveness and the propensity for such conduct to occur again.

 

Provocation is not a defence

In some instances, a Respondent’s conduct prior to an alleged act of abuse can easily be attributed to the Applicant’s behaviour.

Provocation is not a defence to any acts of family or personal violence. However, the Applicant’s conduct of inciting a reaction can be considered by the Court if it is severe enough to have caused the respondent to act proportionally to the incitement.

Whilst provocation is not a defence, a proper and reasonable explanation with sufficient corroborating evidence, can be a competent rebuttal against a restraining order or VRO application.

 

Relaxation in the Hearsay Rule and how it affects the Restraining Order civil jurisdiction

In the past, the Court is entitled to reject any evidence that are of speculative nature, hearsay or opinion. This means that even self-represented litigants are now required to provide corroborating evidence, or evidence that can withstand thorough cross examination in Court, to persuade the Magistrate as to why a Restraining Order should, or should not be granted.

However, section 44A of the Act now provides that the Court is no longer bound by the rules of evidence, and that the Court may inform itself on any matter in such manner as it considers appropriate.

The Court is also given statutory discretion to give such weight as it thinks fit to any evidence admitted by either party, or any information that the Court may inform itself.

This means that if either party were to provide their phone messages for the Magistrate to scroll through during trial, the Magistrate may inform itself on any messages that was not directly presented to them, but any evidence that may be in the view or sight of the Magistrate when the Magistrate scrolls through the party’s phone.

The relaxation of the hearsay rule will then require the Courts to consider not only the credibility and reliability of the evidence presented, but the impression that the Court may have on any of the witnesses at trial.

This would create an element of uncertainty in the parties’ case as the Magistrate is now allowed to consider any evidence that would otherwise have been barred by the Evidence Act.

 

Preparation before meeting us at WN Legal

In order to succeed in making or defending a restraining order or VRO application, we would recommend that you compile all of the evidence that are readily available in your possession before you attend to a meeting with our lawyers at WN Legal.

If the evidence is properly collated, we will be able to access your case more accurately and determine your prospects at our earliest opportunity.

Moving forward, we will also advise you on the evidence we will require from other institutions (by way of summons or subpoena) before trial.

WN Legal prides itself in accurately informing our clients on the true nature of their case and providing them with the best possible outcome.

 

Contact us at WN Legal

If you require legal representation, you can e-mail us on khew.wong@wnlegal.com.au, admin@wnlegal.com.au or contact us on 08 9349 2196.