If you or a child is in immediate danger, call emergency police on 000.
If you and/or a child in your care are victims of threatening or violent behaviour, you and/or the child may be eligible for protection by way of a Violence Restraining Order.
Violence Restraining Orders are made under West Australian state law and prevent a person from being near or contacting another person in circumstances where an act of violence has occurred or is anticipated to occur again.
If a person’s behaviour is directed more towards property or involves a person who you do not have a relationship with, a Misconduct Restraining Order may be more appropriate. For help in deciding which order is right for your situation, contact your local police, Legal Aid on 1300 650 579, or seek legal advice.
Applications for Violence Restraining Orders are made in the Magistrates Court. Although it is not a criminal proceeding, it is highly likely that the police would be involved in some way in a Violence Restraining Order application and that behaviour linked with a Violence Restraining Order would attract criminal charges.
To apply for a Violence Restraining Order, you must file a Violence Restraining Order Application Form and supporting affidavit. You can do this yourself, or utilise the services of a lawyer or Legal Aid to assist you. In some circumstances, the police may also be able to assist you with your Violence Restraining Order application.
Applications for Violence Restraining Orders have specified terms. In the context of a relationship breakdown, you can seek for those terms to include limited contact with the “bound person” if you still wish or need to discuss arrangements for a child’s care or the division of your assets.
You must file your application in the Magistrates Court registry, at any Court location. There are a number of Magistrate Court locations throughout the Perth Metropolitan Area and regional Western Australia. For a list of Magistrate Court locations, click here.
Once you have filed your application, the police will serve the other party who will have 21 days to file an objection. In the meantime, you will have an interim hearing to allow the Court the opportunity to grant you immediate protection. You can seek in your application to have this interim hearing heard without the other party present.
After 21 days, your matter will be listed for a final hearing. At this hearing, both parties will be given the opportunity to give evidence as to why (or why not) a Restraining Order should be made final. This will include cross-examining either party or bringing forward to the Court witnesses and other forms of evidence (including photographs and written messages between the parties).
If you do not have legal representation, in the course of a final hearing you may be required to be in the presence of, speak with or deal directly with, the person you wish to be protected from. This will be under the security and supervision of the Court. In serious circumstances, you can ask to appear at the Court via video link or telephone. To arrange this with the Court, contact the Magistrates Court where your final hearing will be heard as soon as possible.
A Violence Restraining Order, as a civil matter, will be determined on the balance of probabilities. You do not have to prove beyond a reasonable doubt that you anticipate an assault from the other party, but you will have to show that it is more likely than not.
Once a Restraining Order is made final, it remains in force for 2 years. The “bound person” cannot contact you (subject to the terms of the Order) during this time. If you are protected by a Restraining Order and the “bound person” contacts you outside of the terms of the Order, you can call the police for immediate support and protection. Breaches of the Order by the “bound person” can result in that person being criminally charged and prison time.
If you contact the “bound person” outside of the terms in the Order, you could cause for the Restraining Order to be set aside. Accordingly, it is important that you follow the terms of the Order, as well as the “bound person”.
If you wish to amend the terms of an Order, you can do so by applying to the Magistrates Court with a Form 8 – Restraining Order Application to Vary or Cancel. You can also cancel a Violence Restraining Order this way, however you should seek legal advice before doing so.
Note: Restraining Orders are subject to any Orders that the Family Court of Western Australia make in the course of family law proceedings. If you, or your child, is protected by a Restraining Order from the Magistrates Court, the terms of that Order can be affected if the Family Court makes Orders that your child(ren) spend time with the bound party.
You can also apply to the Court to register a Restraining Order that has been made in another state outside of Western Australia. You can do this by filing a Form 12 – Application to Register an Interstate Restraining Order, along with a certified copy of your interstate Restraining Order, in any Magistrates Court in Western Australia. The application will notify police and the Court in which the Order was originally made.
For all Restraining Order kits and forms, including original applications, affidavit forms, variations and interstate registrations, visit the “Restraining Orders” section of the Magistrates Court website here. There is no Court filing fee for applications concerning Restraining Orders.
You can get more information about Restraining Orders, and assistance for making your application, from a lawyer, at any West Australia police station and at Legal Aid. You can contact Legal Aid on 1300 650 579 or visit their Restraining Orders info site here.