Restraining Orders

Restraining Orders

Violence and Misconduct Restraining Orders

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 two types of restraining orders, namely:

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

What is the difference between a Violence Restraining and a Misconduct Restraining Order?

You will need to satisfy different criteria/elements in a violence restraining order as compared to a misconduct restraining order. In basic terms, a violence restraining order has a more ‘stringent’ set of elements as compared to a misconduct restraining order. However, if you satisfy these elements, and if the Court grants you a violence restraining order final order, the order will be in effect for a period of 2 years. In contrast, a misconduct restraining order only lasts for one year from the date of the interim order (if any).

Please note that the duration of these orders may vary, depending on the severity of the ‘act of abuse’ or behaviour, and other factors.

Violence Restraining Order

In order to satisfy the elements to obtain a Violence Restraining Order Final Order, you will need to prove the following:

  1. If there is a family and domestic relationship, that the Respondent has committed an act of abuse on you, namely:
    • assaulted or caused personal injury; or,
    • kidnapped or deprived your liberty; or,
    • damaged your property (including animals); or,
    • behaved in an ongoing manner that is intimidating or emotionally abusive; or,
    • pursuing you or caused you to be pursued;
      • with intent to intimidate the person; or,
      • in a manner that could reasonably be expected to intimidate, and does in fact intimidate you.
    • Threatened to do any of the above.
  2. If there is no family or domestic relationship, then you will need to prove that the Respondent has committed either the following:
    • assaulted or caused personal injury; or,
    • kidnapped or deprived your liberty; or,
    • pursuing you or caused you to be pursued;
      • with intent to intimidate the person; or,
      • in a manner that could reasonably be expected to intimidate, and does in fact intimidate you.
    • Threatened to do any of the above.

And, that the respondent is likely again to commit such an act against you, or that you reasonably fear that the respondent will do so.

Misconduct Restraining Order

In order to satisfy the elements to obtain a Misconduct Restraining Order Final Order, you will need to prove the following:

  1. Unless restrained, the respondent is likely to:
    • Behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected, and would in fact, intimidate or offend the person seeking to be protected; or
    • Cause damage to your property; or,
    • Behave in a manner that is likely to lead to a breach of peace;

and

That granting a misconduct restraining order is appropriate in the circumstances.

What is the process of obtaining a Misconduct/ Violence Restraining Order?

There are simple steps that you can take in order to obtain an interim order. However, an interim misconduct/violence restraining order 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 the matter to trial. It is important that you attend to 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 to determine whether the parties are willing to settle or whether you intend to proceed to trial. It is important that you attend to 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 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 for 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.

How do I defend a Violence Restraining Order / Misconduct Restraining Order

Often, the evidence portrayed by the opposing party is false, inflated, or exaggerated with no corroborating evidence. With adequate preparation for trial and keen attention to detail, an exaggerated allegation may well be identifiable. There are also other instances where hearsay evidence or speculation is used to bolster evidence. It is also not uncommon for a party to divert the issue in contention into another irrelevant issue(s).

Without dwelling further into the infinite possibilities that may present itself at a trial hearing, our lawyers at WN Legal work tirelessly to ensure that all of your legal issues are properly ventilated, strategised and presented in a proper fashion.

 

Notable Case Laws

The case of Baron v Walsh [2014] WASCA 124, is an often discussed case on whether or not using legally available procedure is capable of being an act of abuse under the Restraining orders Act 1997 (WA).

 

What are the costs involved?

At WN Legal, we do not just ‘bill by the hour’ and render an expensive invoice upon completion of our legal services. We will provide a reasonable estimate and endeavour to bill within the confines of our estimate, even if we are required to do extra work. At WN Legal, it is the quality of service and results that we pride ourselves on. Our Perth Criminal Lawyers are passionate, and client focused in helping you achieve excellent results without expending unnecessary legal costs.

Please do not hesitate to contact WN Legal if you require legal assistance in this area of law. Our legal practice director, Khew Wong, has extensive experience in assisting his clients in applying, and defending a restraining order.

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