Family violence can affect anyone from any walk of life. Placing restraints on a person’s movements, behaviour and communications is a serious step. It infringes a person’s liberty and freedom of movement.
It is important to understand how restraining orders work in practice and what you should expect if you find it necessary for you to apply for one, counsel someone who needs to apply for one or respond to an application that has been made against you.
A person may apply for a family violence restraining order (FVRO) online (if they are registered on the e-courts portal), by telephone (in limited circumstances) or by attending the local Magistrates Court registry and by completing an application form (which is what happens most often). Some courts also require an affidavit in support of the application.
A person seeking to be protected by a FVRO is referred to as an Applicant or Person Protected and the person whom the FVRO is sought against is referred to as the Respondent or the Person Bound. I will refer to them as an applicant or respondent in this article.
If you decide to have the application heard without the respondent there (as most people do), the court will list the application before a Magistrate or two Justices of the Peace that day.
Some regional courts or metropolitan courts don’t have capacity to list applications that day so they may list it on another day, and you will need to come back to court then.
The Perth Magistrates Court will usually list the applications for hearing the day they are filed, provided it is filed early in the day.
These applications are known as interim hearings and are often called “ex parte” hearings, meaning that they are held in the absence of the respondent. The purpose of these hearings is to obtain an interim FVRO against the respondent from the court.
The interim or ex parte hearings are heard in a “closed court” meaning no-one from the public is allowed in, except court staff, your lawyer (if applicable) or your support person.
You should attend court as early as possible in the day. The registry usually opens at 8:30am and there are some forms you will be required to complete, and some time spent waiting.
Wearing “smart casual” clothing to court is fine. You should not wear any revealing clothing. You should wear something that you will feel comfortable in but also something like what you would wear if you were going to a job interview in an office.
You should address the Magistrate as “Your Honour” and bow when you walk into the court and when you leave the court. Assume that the Magistrate is watching you at any given time throughout the entire hearing. Do not slouch in your seat and do not frown or make comments when you hear things you do not like or if things do not go your way.
Once your application is called on in court, you will be called into the witness stand and either take the oath or affirmation before giving evidence. It doesn’t matter which one you choose. This, put simply, is a promise to tell the truth. If a person knowingly and wilfully gives evidence which is false or misleading, that may constitute an offence or perjury or attempting to pervert the course of justice, which if found guilty of, may result in gaol.
Tips for giving evidence
There are 5 things you should remember when giving evidence:
- Speak clearly and loudly enough for the Magistrate to hear you. The microphone does not amplify your voice and is only there to record the proceedings for a transcript. The Magistrates also usually takes notes so its important not to talk too fast.
- Listen to questions carefully. If you do not hear the question, or misunderstand it, politely ask for it to be repeated. Don’t guess what was asked as your answer will be important.
- Ensure you understand the questions. If you do not understand, ask the Magistrate to put it another way or rephrase the question in another way.
- Keep your answers to the point and do not elaborate unless it is necessary. It is important to answer questions directly and not go off on a tangent.
- In summary, remember to listen to the question, make sure you understand the question and then answer the question directly.
In most if not all court hearings, what is said is recorded and can be later transcribed. A respondent can request a transcript of an interim hearing (by completing a form 1) at no cost.
It is therefore important not to reveal any personal details such as your address, phone number or place of work or education if these details are not already known to the respondent. The court will usually delete these details if they are accidently revealed.
The Magistrate or Justices of the Peace will ask you questions to see if they should grant an interim FVRO. If you have a lawyer representing you at the interim, your lawyer will ask you questions.
The Magistrate or Justices of the Peace are required to assess whether you meet the criteria for the grant of an interim FVRO. This means they need to decide whether:
- the other party has committed an act of family violence against you and whether the other party is likely to commit family violence against you in the future; or
- that you have reasonable grounds to apprehend that the other party will commit family violence against you unless a FVRO is granted.
If the court is satisfied if either of the above based on your evidence and or your affidavit (if applicable), it must grant the FVRO unless there are special circumstances.
What is family violence?
Family violence means violence, or a threat of violence, by a person towards a family member of the person or any other behaviour by the person that coerces or controls the family member or causes the member to be fearful. Examples of family violence include:
- an assault against the family member;
- a sexual assault or other sexually abusive behaviour against the family member;
- stalking or cyber-stalking the family member;
- repeated derogatory remarks against the family member;
- damaging or destroying property of the family member;
- causing death or injury to an animal that is the property of the family member;
- unreasonably denying the family member the financial autonomy that the member would otherwise have had;
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at a time when the member is entirely or predominantly dependent on the person for financial support;
- preventing the family member from making or keeping connections with the member’s family, friends or culture;
- kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
- distributing or publishing, or threatening to distribute or publish, intimate personal images of the family member; or
- causing any family member who is a child to be exposed to the above behaviours.
What the court must consider in an FVRO application
The court must consider the following:
- the need to ensure that a person is protected from family violence;
- the need to ensure the wellbeing of children by protecting them from family violence,
- the need to prevent behaviour that could reasonably be expected to cause a person to apprehend that they will have family violence committed against them;
- the need to ensure the wellbeing of children by protecting them from family violence;
- the accommodation needs of the respondent and the person seeking to be protected;
- the history of the respondent and the person seeking to be protected with respect to other restraining order applications, whether in relation to the same act or persons as are before the court or not;
- hardship that may be caused to the respondent if the order is made;
- any family orders including Parenting Plans or Parenting Orders from the Family Court;
- other current legal proceedings involving the parties in the case;
- any criminal convictions of the respondent;
- any police orders made against the respondent;
- any previous similar behaviour of the respondent, whether in relation to the person seeking to be protected or otherwise;
- any police incident reports relating to the respondent;
- any risk assessment, or risk-relevant information, relating to the relationship between the respondent and the person seeking to be protected; and
- any other matters the court considers relevant.
What if the application is refused?
If the application is refused, the court will usually ask you whether you want the application dismissed (in which case the other party will not necessarily know about it – unless they made enquiries with the court) or whether you want to adjourn the application to a date where the respondent will be there. In either case, no interim FVRO is made then.
So, the interim FVRO was granted. What next?
If the application for interim FVRO is granted, the court will prepare the FVRO and send it to the Police to serve on the respondent. The FVRO is usually served personally on the respondent, but it can be served by the Police electronically, such as by a text message.
The FVRO takes effect from the time it is served on the respondent. The Police or the court will notify you once the FVRO has been served on the respondent. If the respondent then breaches the FVRO, you should report it to your local Police station immediately.
What happens after an FVRO is served on the respondent?
The respondent then has 21 days from the date of service to object to the FVRO.
If there is no objection, the interim FVRO becomes final for 2 years from the date of service.
If the respondent does object, the court will list the matter for a hearing. There are two different types of hearings, a final order direction’s hearing and a final order hearing.
Final order directions hearing
A final order directions hearing is a procedural hearing where the court enquires whether the matter can be settled either with the application being withdrawn, the parties agreeing on a conduct agreement order or undertaking to the court being agreed to by the parties.
If the application can’t settle and is to proceed to trial, the court will then list the matter for a final order hearing. You should be prepared to inform the court how many witnesses you intend to call and how long you estimate the final order hearing or trial will take. You should not address the court on the merit (or lack thereof) of the other side’s case. The Magistrates cannot determine the case then and there and it can serve to frustrate the process.
One way to resolve a FVRO application is to settle a matter by way of an undertaking to the court. An undertaking is a promise not to do certain things or behave in a certain way. The terms of an undertaking can vary as they are agreed upon by the parties.
Generally, the terms of an undertaking are like that of a restraining order. For example, the parties may agree not to communicate with one another or be within a certain distance from one another. Alternatively, it could be as simple as both parties promising not to behave in an intimidating, offensive or abusive way toward one another.
If the parties resolve the matter with an undertaking, the undertaking is then signed and placed on the court file. The application would then be dismissed and any interim FVRO cancelled. Usually, it can be agreed between the parties that there are no orders as to costs.
If a party breaches the undertaking, that breach would be evidence that a restraining order should be granted if another application is made by the person not in breach.
Conduct agreement order
At any stage in the proceedings, the parties may agree to resolve the application by way of a conduct agreement order. A conduct agreement is not referred to as an FVRO. However, it is enforceable as if it were an FVRO. For example, breaching a conduct agreement is the same as breaching an FVRO and a person in breach can be charged with a criminal offence. If the matter is resolved with a conduct agreement, it does not constitute an admission of any of the allegations in the application and the court can make a conduct agreement order without being satisfied there are any grounds for the application.
Benefits in having the matter settle
The outcome of a final order hearing is never certain. Someone will always be successful and another unsuccessful. It is in everyone’s interests to try to come to an agreed resolution rather than having the court decide. If your relationship was bad with the other party before, it tends to get worse after going through the trauma and stress of being cross-examined and having your character impugned as a witness. There can also be costs consequences.
If an applicant is legally represented and is successful in having a final FVRO made final after a final order hearing, the applicant can seek an order that the respondent pay the applicant part of their legal costs. The amount of the costs a respondent may be ordered to pay depends on variables such as the length of the hearing and the amount of preparation required. This amount is assessed by reference to the Legal Profession (Magistrate Court)(Civil Proceedings) Determination 2020.
On the other hand, if a respondent is successful in having the application for an FVRO dismissed after a final order hearing, a respondent would only be entitled to an order that the applicant pay part of their legal costs if the respondent can establish that the grounds for the application were frivolous or vexatious. This is a high bar for the respondent to meet and it is often the case that a successful respondent is not awarded any costs.
Preparing for a hearing
You should consider what evidence you will need to prove well before the hearing date.
A party can issue a witness summons to produce a record or thing (such as issuing a summons to the Police to produce documents, or a hospital to produce medical records) or a witness summons to attend (requiring a person to attend court and give evidence.) You should always summons a witness requiring them to attend even if they are willing to do so.
Witness summonses must be lodged and served at least 14 days before the final order hearing. However, the witness summons should be served well in advance of the final order hearing, so you have sufficient time to apply to the court for permission to inspect or copy the documents (form 2 application for leave) and can consider them.
If you have a lawyer representing you, the lawyer will usually prepare a witness statement or a proof of evidence which is a detailed outline of the evidence you or your witnesses will give. This is an important tool for both you and your lawyer preparing for the hearing. The witness statement or proof of evidence is not provided to the court or the other party and should be kept confidential.
Final order hearing
A final order hearing is like a trial. This is where you will be required to give evidence, be cross-examined, re-examined and call any witnesses on your behalf in support of your application. The court will hear all the evidence and submissions from the parties or their lawyers and decide whether the application should be granted or dismissed.
The applicant bears the onus of proof in FVRO application. The standard of proof is on the balance of probabilities. The final order hearing will usually proceed as follows:
- The Magistrate will enquire of the parties or their lawyers if the matter can be resolved without proceeding with the final order hearing. If so, the court will stand the matter down so some negotiations may be had to try resolve the matter.
- If the matter still does not settle, the Magistrate will make an order for witnesses out of court, and they are to remain outside the courtroom until they are called in.
- The applicant or their lawyer starts their case first. This usually includes a brief opening statement summarising what the application is about. The respondent or their lawyer then has a chance to respond and provide their opening statement.
- The applicant will then usually be called to give evidence. This involves giving evidence in chief, being cross examined (by the respondent’s lawyer or the Magistrate if the respondent is not legally represented) and re-examined. This process is repeated for each witness called on behalf of the applicant.
- The respondent goes second and will then start their case. The respondent will usually be called to give evidence, be cross-examined and re-examined. Again, this process is repeated for each witness called on behalf of the respondent.
- Once all the witnesses have given evidence, the parties will be invited to provide a closing address summing up the evidence and making submissions.
- The Magistrates will then either reserve a decision and hand it down later or give reasons for the decision then and there. The application will either be dismissed and any interim FVRO cancelled, or the application will be granted and a final FVRO made for a duration and on the terms as the Magistrate sees fit.
- If the parties are legally represented, there may also be an application for costs.
Do you have the right to appeal?
Yes. You have 21 days to lodge a notice of appeal to the District Court should you wish to do so. You should obtain legal advice before lodging an appeal.
Some take-aways from the FVRO process
FVRO applications are not straight forward. Many people attempt to represent themselves, but it can be complicated. It is also an emotional and stressful case to run yourself. It is stressful going face to face with someone who has committed family violence against you or has accused you of family violence. The consequences of breaching an FVRO are serious and can lead to criminal charges, and in the case of repeat offenders, a possible gaol sentence.
The 10 things I would take away from the FVRO process are:
- Beware of delay. If you are a respondent, any interim FVRO remains in force until the FVRO is settled or determined at a final order hearing. If an interim FVRO is in place, your case may take around 6 months to 1 year or so until the final order hearing (during which time the FVRO will be in place). You should consider negotiating a settlement with an undertaking or conduct agreement of a reduced duration as opposed to waiting for your day in court all whilst being subject to an interim FVRO.
- The effect of pending criminal charges. If there are criminal charges arising from the same matters the subject of the FVRO, the court’s usual practice is to adjourn the FVRO hearing until the criminal charges are finalised. There are several good reasons for this including to preserve an accused’s right to silence in the criminal proceedings, to not prejudice an accused’s criminal trial and to save the court to have to utilise time and resources for two trials over related, although separate, matters.
- Know the rules. In restraining order proceedings, the rules of evidence do not apply. However, an applicant still bears the onus of proof of the balance of probabilities. Consider what oral and documentary evidence you will need to prove or contradict allegations of family violence. You then need to take steps to arrange or obtain that documentation or information. Children are also not permitted to give evidence in final order hearings without leave or permission from the court.
- Know what needs to be proved. Most people are aware what family violence means and that the legislation gives examples of what family violence is. Most people also know that they must prove that family violence has occurred, or they have reasonable grounds to fear that it will occur. However, some people don’t realise that the court must be satisfied that such family violence is likely to happen again, or you reasonably fear that it will happen again. For example, if the applicant experienced family violence during a relationship of which there are no children and no joint property and the relationship has come to an end without any further contact from the respondent, it may be difficult for an applicant to argue that any family violence is likely to happen again as the family violence took place in the context of a relationship only.
- Do your homework. You should apply to the court for a copy of the application for FVRO, a copy of the transcript of the interim hearing and any affidavit filed in support of the application. You should also summons any relevant documentation or information and witnesses to attend court well before the final order hearing.
- Be reasonable. A lawyer will encourage you to take a reasonable approach to resolving the matter. The vast majority of FVRO applications settle with an undertaking to the court or a conduct agreement order. The reasons for this include the drawn-out nature of court generally, legal costs, the stress of the court process and the trauma of giving evidence and being cross-examined. The cases that don’t settle are usually the ones that probably should have. They involve the most serious or contested cases or where one party is being unreasonable or stubborn.
- Understand the implications of a FVRO. If the application is between you and your ex-spouse and children are involved, you should know that “Family Orders” (including parenting plans and parenting orders from the Family Court) override the FVRO to the extent that the FVRO is inconsistent with the Family Order. For example, if the FVRO says you can’t communicate with the child, but the Family Order says you can, you can communicate with the child to the extent permitted by the Family Order. Family Orders should be provided to the Magistrates Court. You should also be aware that any findings made by a Magistrate in an FVRO hearing can be taken as proved findings in the Family Court.
- Breaching an FVRO or conduct agreement. Breaching an FVRO is the same as breaching a conduct agreement. The statutory maximum penalty is a fine of $10,000 and or 2 years’ imprisonment. If you breach a FVRO or conduct agreement orders more than twice in two years, there is a presumption that you will be sentenced to a form of imprisonment. That presumption can be rebutted if the court is satisfied that imprisonment would be clearly unjust in the circumstances and the offender is unlikely to be a threat to the safety of the applicant or the community.
- The calculation of previous relevant offences. If convictions for breaching an FVRO are recorded on the same day (even if the offence dates differed), the offence would be treated as a first conviction. The principles were discussed in the case of D’Costa v Roe  WASC 99 (2 March 2013) where the Lord Coke principle were analysed. However, since that case the legislation was amended, and the amended legislation has not yet been tested in the Supreme Court.
- Get a lawyer preferably with experience in restraining order matters. It is impossible to negotiate a settlement with the other party if you can’t communicate with them. It is also a very hard to question or examine in open court a person who has committed family violence against you or has accused you of that. A lawyer can help either negotiate an outcome without the need to go to a final order hearing or advocate on your behalf, so you get the best possible outcome at a final order hearing.
If you require assistance in restraining order matters, please contact Stephen Butcher who has over 15 years’ experience is practicing in this area for a consultation.
*The content of this article is current as at the date of the article. The content of the article does not constitute legal advice and you should obtain independent legal advice about your rights and obligations in relation to your individual circumstances.