Klimek & Co Lawyers
In Western Australia, the Magistrates Court can issue Restraining Orders to protect a person from the conduct of another person pursuant to the Restraining Orders Act 1997. Restraining Orders operate to restrict the ordinary liberties of individuals in certain circumstances in order to protect others.
Other Western Australian Courts, including the Family Court, are empowered to make Restraining Orders, however this occurs infrequently and in limited circumstances.
There are two kinds of Restraining Orders:
A Violence Restraining Order (VRO) can be made in circumstances of “Personal Violence” or “Family and Domestic Violence” as defined by the Restraining Order Act 1997. It is noteworthy that actual violence need not have occurred against a person seeking to be protected nor is it necessary that the paerson fears actual violence is likely to occur in order for them to be granted a VRO.
A Misconduct Restraining Order (MRO) can be made in circumstances that do not fit the categories attributable to a VRO, yet the Court considers restraints ought to be made against a person who is likely behave in an intimidating or offensive manner, cause property damage or behave in a manner that will or will likely lead to a breach of the peace.
Restraining Orders restrict the otherwise lawful activities of those bound by them. For example, a Restraining Order may restrict the person bound from approaching the person protected, their residence or workplace within a specified distance.
Although being bound by a Restraining Order is not criminal itself, it is a crime to breach a Restraining Order.
Restraining Orders are commonly issued on an interim basis by the various Magistrates Courts on an ex parte basis, meaning at a hearing where oral evidence is provided by the person seeking to be protected in the absence of the person bound. Once the person bound is served with the Restraining Order is made final. Lodging an objection means that the Court will set down a hearing as to whether or not the interim Restraining Order ought to be made final.
Restraining Orders may extend to other persons connected with the person who applies to be protected. This can include the children of the parties.
In certain circumstances, Orders of the Family Court in relation to children prevail overRestraining Orders to the extent that they are inconsistent in most circumstances.
Violence Restraining Orders are often litigated in the Magistrates Court between parties litigating proceedings in the Family Court. This often occurs over the same facts and it is therefore advantageous to have a lawyer that provides representation in both of these jurisdictions.
Klimek & Co takes instructions from all parties involved in Restraining Order proceedings – those seeking to be protected and those responding to the application for a Restraining Order by another party. We can assist in negotiating agreements that then do not necessitate litigation or to provide court representation at any stage in this process.