Breaching a restraining order in Western Australia is a criminal offence under the Restraining Orders Act 1997 (WA). Restraining orders are issued to protect individuals who may be at risk of violence, threats, intimidation or harassment.
The courts treat breaches very seriously, and penalties can include heavy fines and imprisonment. When a person deliberately fails to follow the conditions of an order, they may face immediate legal consequences.
What Is Considered a Breach?
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.
This can include:
- Contacting the protected person in any form
- Attending their home, workplace or other restricted locations
- Communicating through third parties
- Using phone calls, texts, email or social media
- Sending letters, gifts or messages indirectly
- Any behaviour specifically prohibited by the order
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.
Each restraining order can contain different rules and exceptions. For example, some orders allow limited communication about children, mediation or emergencies. It is essential to read the conditions carefully and seek legal advice if unclear.
Types of Orders Covered
Penalties apply equally to breaches of:
- Family Violence Restraining Orders (FVRO)
- Violence Restraining Orders (VRO)
- Misconduct Restraining Orders (MRO)
- Police Orders
- Conduct Agreement Orders (CAO)
The law treats breaches of Police Orders and CAOs in the same way as breaches of FVROs and VROs.
Penalties for Breaching a Restraining Order in WA
Penalties depend on the order type and the offender’s history.
FVRO and VRO Breaches
- Up to $10,000 fine
- Up to two years imprisonment
MRO Breaches
- Maximum $1,000 fine
Repeat Offenders
If a person breaches an FVRO or VRO more than once within a two-year period, they are considered a repeat offender.
In these cases, the court must impose a term of imprisonment unless doing so would be clearly unjust in the circumstances. This rule exists to prevent ongoing harm and escalating behaviour.
Child Exposure and Aggravating Factors
If a breach exposes a child to family violence, sentencing becomes more severe. Protecting children is a priority for the justice system, and any behaviour that places a child at risk will significantly increase the seriousness of the offence.
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 Happens When a Breach Is Reported
If a breach is reported:
- Police may investigate and collect evidence.
- If satisfied there is a breach, they may arrest and charge the person bound by the order.
- The accused may be held in custody until appearing before the Magistrates Court.
Bail Considerations
When an accused seeks bail, the court considers:
- The safety and protection of the protected person
- Risk of further breaches or violence
- Past behaviour and criminal history
The protected person may provide views about bail conditions such as distance restrictions or bans on contact.
Sentencing Considerations
If convicted, the court may consider:
- The seriousness of the behaviour
- History of previous breaches
- Presence of remorse or early guilty plea
- Whether counselling or behaviour-change programs are appropriate
- Any exposure of children to family violence
The court may impose immediate imprisonment, suspended imprisonment, fines, or orders requiring rehabilitation depending on circumstances.
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.
Key Points to Remember
- Breaching a restraining order in WA is a criminal offence.
- Maximum penalties for FVRO or VRO breaches include a $10,000 fine and two years imprisonment.
- MRO breaches carry a maximum $1,000 fine.
- Mandatory imprisonment may apply for repeat offenders within two years.
- Exposure of children significantly increases sentencing seriousness.
- Police may arrest and charge immediately and bail conditions may strongly restrict movement.
- The protected person’s consent is not a defence, although it may be relevant when considering varying or cancelling the order.
- Every order has unique conditions and exceptions — it is critical to understand them clearly.
***The information provided on this website does not, and is not intended to, constitute legal advice; all information, content, and materials available on this site are for general informational purposes only. Information on this website may not include the most up-to-date legal or other information.
Readers of this website should contact their attorney for advice on any particular legal matter. Only your attorney can provide assurances that the information contained herein and your interpretation of it are applicable or appropriate to your situation. No reader, user, or browser of this site should act or refrain from acting based on information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers.
