Recent changes to Violence Restraining Order laws

Historically, there have only been two categories of restraining orders that people can apply for in Western Australia, the Misconduct Restraining Order (MRO) and the Violence Restraining Order (VRO).

From 1 July 2017, the law relating to restraining orders in Western Australia was amended to introduce a third category of restraining order, being the family violence restraining order (FVRO). The purpose of the introduction of the FVRO was to ensure that victims of family violence are better protected.

Family Violence Restraining Orders 

The introduction of FVROs was given full support in Parliament, as family violence is considered to be one of the biggest ‘law and order’ issues in Western Australia, primarily due to the impact that it has on the wellbeing of the community, and in particular, children.1

FVROs are court orders made against a family member of the applicant, be it a partner, ex-partner or another family member (for example, an uncle, son or grandfather). FVROs are designed to stop threats of violence, violence or behaviour that coerces controls, or causes fear in an individual. 

According to previous Attorney General Michael Mischin, FVROs are designed to ‘reduce the onus on the victim to provide evidence of intimidating or controlling behaviour’.

To that end, a FVRO may be granted if:

  1. the respondent has committed family violence against the person seeking to be protected and the respondent is likely to again commit family violence against that person; or
  2. the person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.

An FVRO may also be made for a child in circumstances of family violence where, for example:

  1. the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or
  2. the applicant, being a person who the child is in a familial relationship with, has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.

Depending on the circumstances, a FVRO may prevent the respondent from doing all or any of the following:

  1. being on or near premises where the person seeking to be protected lives or works;
  2. being on or near specified premises or in a specified locality or place;
  3. approaching within a specified distance of the person seeking to be protected;
  4. stalking or cyber-stalking the person seeking to be protected;
  5. assault against the family member;
  6. communicating, or attempting to communicate (by whatever means) with the person seeking to be protected;
  7. from obtaining and using personal property reasonably needed by the person seeking to be protected, even if the respondent is the owner of, or has a right to be in possession of, the property; or
  8. distributing or publishing, or threatening to distribute or publish, intimate personal images of the person seeking to be protected.

Even if the person does not commit any of the above acts personally, but instead gets someone else to do them on their behalf, they can still be taken to have committed the acts themselves.

A person who is bound by a FVRO and who breaches that order commits a criminal offence.  The maximum penalty for this offence is $6,000, or imprisonment for two years, or both.2   If the offence involves a child with whom the offender is in a family and domestic relationship being exposed to an act of abuse, this is an aggravating factor.3

If a person has been convicted of at least two offences of breaching a FVRO within two years, and that person is then convicted of breaching a FVRO for a third time, the court must impose a penalty that includes imprisonment.4   The only time a court may not impose imprisonment in these circumstances are if they are satisfied that imprisonment or detention would be unjust given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of a person protected or the community Rich text editor, editor4, Press ALT 0 for helpgenerally.5

Violence restraining orders

By the introduction of the FVRO, the law relating to VROs was also amended from 1 July 2017.  As a result, VROs can now only be brought against a person who is not, or has not ever been, in a familial relationship with the person seeking to be protected.6   The nature of protections that can be provided by a VRO have not changed, but matters specific to family violence (that were previously addressed in VRO provisions) have been migrated into the new FVRO provisions.

A VRO is a court order designed to stop threats, property damage, personal violence, intimidating behaviour and emotional abuse towards a person who they are not in a family relationship, examples of which include:

  1. assaulting or causing injury;
  2. kidnapping;
  3. depriving the liberty of the person;
  4. stalking; and
  5. threatening to do any of the above.

These acts will be seen to have been committed by a person, even if they get someone else to carry out the act or behaviour on their behalf.

A VRO is not a criminal charge, but a breach of a VRO can result in criminal sanctions, penalties including fines of up to $6,000 and/or imprisonment for 2 years.7

Misconduct restraining orders

An MRO is another court order designed to stop a person behaving in a way that is intimidating or offensive towards another, from causing damage to someone else’s property, or acting in a way that may disturb the peace.

An MRO is ordered where a person wants to prevent the behaviour of someone who is not in family relationship with them (if a person needs protection from someone who is in a family relationship with them, they may need to apply for a FVRO).

MROs can be tailored to the needs of an individual’s unique situation, and has the potential to stop someone from, for example:

  1. being on or near a named building, locality or place;
  2. coming within a certain distance of a person;
  3. making contact with a person(including visiting, calling, sending text messages, emails, letters, presents or even messages through other people);
  4. having a gun or a gun licence; and
  5. having someone contact the individual on their behalf.8

An MRO is not a criminal charge, but a breach of an MRO results in criminal sanctions and may result in a fine of up to $1,000.9 

The MRO provisions have not been significantly amended in the 1 July 2017 update to the Act.  They can still be brought by anyone over 18 years’ old by way of an application out of the Magistrates Court, or to the Children’s Court of Western Australia.

Lavan comment

Given the introduction of FVROs, there are now three different types of restraining orders that you may apply for in order to protect you or your loved ones from harm. 

Before you make an application, it is important that you carefully consider:

  1. which category of restraining order is applicable given the situation; and
  2. the issues the Court will consider when deciding whether or not to grant the types of orders that you, or someone you know, intends to seek.

If you need any assistance to determine which order should be applied for, or you need to instruct someone to represent you at a Court hearing in relation to a restraining order application, we encourage you to seek legal advice.