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WN Legal Podcast Ep 4: Restraining Orders – Updated Laws and New Classifications

In this episode, Khew and Amy discuss different types of violence restraining orders (VROs), and how the laws surrounding them have been recently updated.

What sort of VRO might you need? What is the difference between different classifications of VRO? Do you need a trial to settle your dispute? And what do you need to do to be prepared for your legal situation?

Together, the team takes a look at the real-world issues and questions people need answered surrounding violence restraining orders.

The full transcript is below!

Khew: Welcome to WN Legal’s podcast. My name is Khew, and together with me I have Aimee Price. And what we’ll be talking about today is violence restraining order. In fact, we’ll be talking about the new violence restraining order act, after the amendment. As of 1st of July 2017, you would have seen in our blog that I have posted something about violence restraining orders, or restraining orders in general. But, that is about the old act. As of 1st of July, a few months ago, there have been new laws in place, and then there is such a thing now as a conduct agreement. Aimee will be talking about that.

Now before we go on further, I do want to provide a brief disclaimer that this podcast is a general discussion about the areas of law that we practise in, that the public may be interested in. It should not be taken as a substitute for legal advice whatsoever, as each case is different. So I do recommend that you speak to us, before you decide to use any of what we’ve said as advice. In any event, that should be the case. Okay?

Aimee: Okay. So, my name’s Aimee, and Khew has introduced me, and I’m another fellow solicitor at the firm. Now firstly Khew, I suppose if you could give us a bit of a rundown as to the previous violence restraining orders in WA, and then what has changed I suppose, in respect to the new family violence restraining orders? So if you could just give a brief comparison about the two, and how I suppose clients can negotiate their way around the two, and how they work?

Khew: Yes. The older restraining orders act, that is prior to 1st of July 2017, they separated the restraining orders into violence restraining order, and also misconduct restraining order. So one is under Section 11A, that’s the violence restraining order. And then it’s Section 34, and that’s misconduct restraining orders. So, they have two different breeds of restraining orders. In the past, violence restraining orders encompassed two kinds. They encompassed domestic violence, and they encompassed personal violence. Encompass personal violence, sorry.

Now, that is the violence restraining order. If indeed made final, it stays final for two years. That feature is the same now with the new violence restraining order. But the previous violence restraining order, the old back … the restraining orders act talks about section 11A specifically, about how section 11A the violence restraining orders act due to domestic violence and personal violence. The new act does not do that anymore. The new act splits domestic violence into a separate section. It’s now in section 10D. To simply put it, as of first of July 2017, there are three different legislation in respect to restraining order.

There is family violence restraining order, in section 10D. There’s violence restraining order under section 11A. And there’s misconduct restraining order the section 34. So, the new act splits section 11A into two different pieces so it’d be separate. The family violence restraining order under 10D now talks about acts of family violence. They have then now defined family violence.

So, in the past when our clients come in, we only address what a violence restraining order is. But now the criteria for violence restraining order and family violence restraining order is completely different. So, if you have a neighbour dispute, that does not fall under the new act of section 10E, that falls under the new act of section 11A, violence restraining order. And the definition to get a violence restraining order has changed significantly. So has it for the family violence restraining order for 10D. It’s a bit confusing. So, you can speak to us and we’ll obviously give you advice on your case by case basis.

Section 34, however, misconduct restraining order hasn’t changed much. I believe there is a little bit but, it’s not much. It hasn’t changed as much as compared to …

Aimee: And I suppose Khew in respect to the violence restraining orders and the family violence restraining orders, what is satisfied … I mean, what do you need to satisfy in order to get a family violence restraining order? What relationship do you need to be in? How do we deal with that? I mean, from my understanding, I would obviously safely say that it’s married couples, de facto couples, anyone is a relationship really. How do we define, sort of, the length of that relationship? Is there a line in relation to the threshold, or?

Khew: There is. So, to comply with family violence restraining orders act, so that means if you apply for family violence restraining order under the new act, family relationship is defined in section 4 of the restraining orders act. People who are or were married to each other; who are or were in a defacto relationship with each other; who are or were related to each other; one whom a child is who ordinarily resides or resided with the other person; and one that regularly stays or resides or stayed with the other person; or one whom was or is a child whom the other person is a guardian or one who has or had an intimate personal relationship or other personal relationship with each other. Other person in a relationship includes a relationship of domestic nature in which the lives of the persons are interrelated and the action of one person affects the other. So, it’s a very vague term, but when you apply for a restraining or family violence one, you will get a checklist from the court actually, and you tick through it.

Aimee: To ensure that you satisfy that section before you apply for a restraining order?

Khew: Yes.

Aimee: So as to not apply for the wrong one.

Khew: That is correct.

Aimee: Yup. Okay.

Khew: So, how do you know whether family violence restraining order applies to you? Look at section 4 of the restraining orders act. You’ve asked me the question of, how do you satisfy the application for a family violence restraining order. Under section 10D of the restraining orders act, the new one, it states that the court must grant a family violence restraining order if it is satisfied. May, sorry. Not must, the court may make a family violence restraining order. If it is satisfied that the respondent has committed an act of family violence against the other person, the applicant, and is again likely to do so again.

Family violence is defined under the new act again, the new section. Family violence, it includes the term of reference a very vague term of violence or a threat of violence. And any other behaviour by the person the coerces or controls a family member or causes the member to be fearful. Now, family violence or threat of violence is … Sorry, violence or threat of violence can constitute to family violence. That includes assault, sexual assault, stalking, cyberstalking, repeated derogatory remarks against family member, damaging or destroying property, death, causing death or injury to an animal and the list goes on.

Aimee: I think what’s important from this new term in respect to the family violence as it encompasses a lot of more of, I suppose, the intrinsic issues in relation to marriages and de facto relationships things that happen. As opposed to the violence restraining orders where you would have to satisfy that the other person’s conduct was offensive or intimidatory in nature. This just opens the door to a whole nother behaviour.

Khew: Yes, that’s correct. The old restraining orders act usually says … I believe from memory … says that to satisfy an act of violence the person’s behaviour that is intimidatory or offensive. That very word intimidatory and offensive is so broad. But that was the old law, and now they’ve taken that out, and they’ve replaced it with violence or threat of violence. And that is a lot more specific.

Aimee: Yeah, and I think it’s important especially with the way that a lot of intimidating and derogatory behaviour occurs nowadays. A lot of it is online based and social.

Khew: And cyber.

Aimee: Yeah, and cyber based. And this new family violence restraining order actually makes specific mention that cyber based bullying or threats of bullying or threats of uploading media or whatever the case may be actually falls within that term of family violence, which is really important.

Khew: Absolutely.

Aimee: So, instead of … prior to the first of July, having to satisfy that that behaviour was intimidatory or offensive, it now automatically falls part of that family violence, because of the prevalence of that sort of behaviour.

Khew: That’s correct.

Aimee: So, that’s a good protection I suppose for anyone wanting to apply for a family violence order after the first of July, because it does make it a little bit easier in terms of satisfying these elements when they’re specifically listed as opposed to being very broad brushed.

Khew: Yup. So, I think to simply put it, it has been fine tuned by the parliamentarians.

Aimee: Yeah. Most definitely.

Khew: Now, violence restraining order no longer encompasses family violence. Now violence restraining order under section 11A deals with personal violence now. There is actually a new definition for it as well. I’m just going to through quite quickly and briefly. Most of our clients come in usually they are dealing with family violence, but there are neighbourhood disputes. Neighbourly disputes fall under section 34 misconduct restraining order. Now, that definition hasn’t changed as far as I could remember. Actually we see it … don’t quote me on this … But I think under section 34 it still goes on and talks about behaviour that can be expected to be intimidating and offensive. Yes, so it has stayed the same under section 34.

So, if you had a neighbour, for example or you’re going against just a random stranger that has been continuously harassing you, continuously is the term. Okay? And if they continue to do so, you can choose to either do it under section 11A Violence Restraining order, or 34 misconduct Restraining order. Thirty-four is easier based on wording because it is intimidating and offensive. The drawback of misconduct restraining order from my experience in the many cases we’ve dealt with, is the police don’t quite enforce them, unfortunately. Especially in circumstances where they are neighbour disputes. They tend to respond better to violence restraining order because violence restraining order has a term violence, so 11A denotes the very definition itself of what violence is. It gets a new definition as well.

Right, moving aside from I guess the new act and how it’s a bit different.

Aimee: I suppose the other thing that’s different with the new act, which is what I’ll talk about as well. So, Khew’s already addressed part how we satisfy the family violence order. Now, section 10H of the restraining orders act also now includes a section on conduct agreements. Now, as opposed to an old violence restraining order, I suppose old being pre first of July this year, we could I suppose elect to do an undertaking in relation to finalising a violence restraining order. However, the issue with an undertaking …

Khew: Is that it’s not binding.

Aimee: It’s not binding. So, it’s basically a promise that I won’t do this to you Khew and you won’t do that to me, or something along those lines.

Khew: Is that a threat?

Aimee: Well, maybe. But I suppose, if that person was to break that promise and to continue contacting you or to continue behaving in the same way, is actually, it’s not enforceable. The police will actually not do anything. There’s no legal repercussions for an undertaking; so, that was always a risk with the undertaking.

Khew: Well, there are legal repercussions if you breach an undertaking. It’s another, reason to reapply again, but …

Aimee: It’s not automatically yet?

Khew: It’s not a here nor there. You’re in the middle of the desert still.

Aimee: Yeah, and you’re still sort of in the same boat that you would have been when you first initially applied.

Khew: Yup.

Aimee: Now in relation to the family violence restraining order, what we have now is what’s called a conduct agreement. Now, a conduct agreement is enforceable by the police. So, basically if someone agrees to a conduct agreement and they breach that, the police can enforce this. Now, the conduct agreement is basically without admission and I’ll get Khew. He’s probably a little bit more savvy with his terminology here, but it’s a without admission as to lead acceptance of the the VRO effectively.

Khew: … as to liability, yup.

Aimee: So, the person who is being bound by the violence restraining order can agree to conduct agreement without having to admit to the allegations that are being brought forward and without having them be tested before the court as well.

Khew: On the dispute of facts.

Aimee: On the dispute of facts. So, that’s obviously a quicker way of resolving a matter with it obviously having to go to a final trial hearing. This is somewhat … you know it won’t work in every situation obviously, but where it can, it is useful. And the good thing about it as opposed to the undertaking is that it is enforceable, which is what we … It protects the clients.

Khew: Essentially, yeah. I mean, you’ve been to court this morning with the very same thing.

Aimee: Yeah, just this morning I was at the Midland Magistrate’s court and was negotiating a conduct agreement between two parties and the Magistrate actually said, “Oh, you might have to give me a little bit of assistance here because I’ve actually never done one before.” So, it’s that new.  

Khew: It’s pretty new.

Aimee: It’s very new. So, even one of the Magistrates was not entirely sure who to affect the conduct agreement, but as time goes on.

Khew: We’ve been through the process. So, it’s pretty much if you agree to conduct agreement … Sorry, if the respondent agrees to the conduct agreement, the court will enforce the agreement like an order. So, to simply put it when negotiating, we can put on the table obviously an undertaking, but we know how well it goes. It does resolve a lot of disputes, most of the time if the parties are amicable. But, if it’s serious, conduct agreement is something that everyone should consider. That’s in the circumstances of the family violence restraining order.  

Aimee: Yeah. It doesn’t apply to normal violence restraining orders, so.

Khew: Not that I’m aware at least, because of the way the law is constructed. So, in violence restraining order they are separate mechanism but of similar means. I think it’s under section 33, and it does say that what happens is if the respondent does not object to any interim orders being in place to be made final, it’s also done on there without admission as to a liability basis.

What is means is, “Look, I’m not saying I’m wrong. You know, I’m not saying I’ve done anything wrong. I’m just going to agree to it, because I don’t want to fight it.” The court does understand that.  

Aimee: Because it’s easier and it’s concurrent.

Khew: The court actually does recognise that and it’s not at all prejudicial. What is prejudicial is if undertaking’s not resolved the situation, if conduct agreement’s not agreed upon, and if the interim order is not consented upon, you go to trial and you lose, there is a fine in effect. And that is a serious issue because the court will record by way of reasoning why they believe the applicant should win and what evidence they’ve considered in doing so.

Very recently we’ve done quite a lot of restraining order trials, and obviously when they go to trial and there’s a final effect, I’ve always … most of the time in the circumstances that I’ve represented my client, the final effect usually is very damning to the other party. So, long story short if the parties do settle, it’s probably the best thing. Every lawyer should, in my opinion at least … I can’t speak on behalf of the rest of my peers or colleagues but if they opportunity presents itself and everyone agrees, then a conduct agreement is something very …

Aimee: Definitely to be considered. Because I suppose instead of, you know with court backlog at the moment, realistically if this morning’s hearing that I attended on behalf of Khew was to not go by way of conduct agreement and was to proceed to a final trial hearing, we’re looking at probably April, May, June. So, that’s about seven months away.

Khew: Same as in general. The next hearing is in …

Aimee: Each court is different but generally you’re looking at at least a six month wait. So, in the interest of resolving the matter quickly and letting everyone move on with their lives, it is a good option. But obviously it won’t work in every situation. But where it is a possibility it seems like a good avenue definitely.

Khew: Yeah, but look, that doesn’t mean our practise actively campaigns in settling everything. In some circumstances and actually most circumstances in our cases that we’ve dealt with, the only resolution is by way of a trial. And that had happened on a few occasions in my recent clients as well. So, I’m not saying … well, to resolve is obviously the best option, but sometimes you just can’t.

Aimee: That’s true. You just can’t, yeah.

Khew: Look, costs about this is a separate issue so if the applicant wins in a trial or the respondent wins the issue of cost is a completely separate issue. We’ll be talking about that sometime in the distant future.

Aimee: That might be another podcast.

Khew: Yes. Alrighty. Anything else to say?

Aimee: No, nothing further from me. So, I hope that’s been informative and given a little bit of insight, while it still might be a little bit confusing it has hopefully given a little bit of insight as to the old law, the new law and how it all winds in together.

Khew: Alright, thank you. Thanks Aimee.

Aimee: Thanks very much. Bye.

Khew: Thanks, bye.  

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