Restraining Orders

Restraining Orders

In our previous article and podcast, we discussed the types of Restraining Orders that were available prior to 1 July 2017. Since 1 July 2017, the lawmakers introduced several amendments to the Restraining Orders Act 1997 (WA) (“the Act”)-

Hyperlink: https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_40701.pdf/$FILE/Restraining%20Orders%20Act%201997%20-%20%5B05-a0-00%5D.pdf?OpenElement

Some of the more prevalent changes to the Act (“the new Act”) include:

  1. The introduction of a new breed of restraining order, the “Family Violence Restraining Order” (“FVRO”).
  2. The change in definition and tests for Violence Restraining Order and the phasing out of “intimidating and offence” in Violence Restraining Orders (“VRO”);
  3. The relaxation of rules of evidence under section 44A, and because of this, the way restraining order trials are now conducted.

 

Violence Restraining Order vs Family Violence Restraining Order

In the past, one of the main element 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, namely behaving in an ongoing manner that is intimidating or offensive.

Before the new Act came in to play, 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

In the new 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 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

Section 10D of the new 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. 

 

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.

The Courts may take a dim view against applicants who apply for a restraining order if only a single act of abuse had occurred, as it could easily be argued that the Applicant had not fulfilled the “second limb” of a restraining order test. This is the repetitiveness and propensity of the said act of abuse. 

 

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 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 an 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.