Family Violence Restraining Orders – Some Do’s and Don’ts
19 October 2021
For many, the first reaction when being served with a Family Violence Restraining Order (‘FVRO’) by a member of the Western Australia Police, is shock and confusion. The second reaction sadly, often involves the person bound trying to contact the person protected to ask, “why?”
Experience shows that people often make the biggest mistake possible with an FVRO within an hour of being served, by breaching the order in an effort to understand why it was taken out in the first place.
The result of that, given the WA Police’s prosecution guidelines on the topic, is that usually the person bound will be arrested, remanded in custody and put before a Magistrate at the next available opportunity, often resulting in a criminal record, which can often affect employment.
But let’s rewind a bit, and look at what you should do when served, as well as taking a look at a series of things that you most certainly should not do when served. It may just save you a trip to Court, a hefty fine and/or a criminal record.
The first time most people know that an FVRO exists is when they are served with the paperwork. An FVRO can be sought by someone without any warning to the person bound. By the time you are served with the FVRO, it is already in force (on an interim basis) and in full effect.
The first step, is for you to read the document carefully. Of particular importance is the section marked ‘Terms of this Order’. This section sets out exactly what you can, and cannot do.
The second step, is to arrange to obtain legal advice as soon as practicable. You should also make sure that you keep the Objection form handy, which will be served along with the FVRO, as you will need that document if you wish to oppose the FVRO. You have 21 days to file the Objection, from the date of being served.
The process, generally, after being served with an FVRO is that the person served will complete the Objection form and file it at the registry of the Court from where the order was made. You can work out where the order was made by looking at the top right-hand side of the first page of the FVRO document. You will also note the file number, usually MC/CIV/XXX/RO/####/#### where XXX is the Court location, and ####/#### is the file number.
If you’ve done the right thing and arranged an appointment for legal advice, your lawyer will often either instruct you to apply to the Court for a copy of the transcript of the hearing that occurred when the person protected applied for the order (known as an ex parte hearing), and a copy of any paperwork that was submitted at the time as well.
The first request for a transcript of the ex parte hearing is free of charge if it is sought by the person bound by the FVRO.
In some courts, once you file your objection, the matter will be listed to a mentions hearing, where the Magistrate will determine details such as the number of likely witnesses, and whether the parties have been able to resolve the matter via an undertaking or conduct agreement order.
If the parties are still not in agreement and wish to proceed to trial, the Magistrate will list a trial date.
Remember, the order will be in force until such time as it is disposed of by way of an undertaking a conduct agreement order, or the expiry of its listed duration. If you breach it before its expiry, you will likely be committing a criminal offence.
It is important to remember, that an FVRO is a civil proceeding, and the existence of an FVRO will not be recorded on your criminal record. However, if you breach the order, you will likely face criminal charges, which can be recorded on your criminal record, and which can affect employment, particularly in the FIFO industry.
Who can Apply for a FVRO?
Anyone who is in a family relationship, or, is a family member of the person bound can apply for an FVRO. The more complete list can be found in the Restraining Orders Act 1997 (WA) at Section 16.
Noting that the following list is not exhaustive, that person can apply for an FVRO if they believe that you have:
-Committed an act of family violence against the person protected, including but not limited to physical abuse, verbal abuse, sexual abuse and financial control;
– Threatened to commit an act listed above;
– Behaved in an intimidating or offensive manner towards the person protected;
– Repeatedly insulted or criticised the person protected;
– Stalked or cyber-stalked the person protected;
– Damaged or destroyed the person protected’s property;
– Killed or injured an animal that belongs to the person protected; and/or
– Shared, or have threatened to share intimate personal images of the person protected.
When will a Court make a Restraining Order?
The Court will make an FVRO if it is satisfied that:
1. The person bound has committed family violence against the person protected, and is likely to do so in the future (unless restrained); and/or
2. The person protected has a genuine fear that the person bound will commit family violence against them.
If the Court is satisfied as to one, or both of the above, then it will make an FVRO, unless there are special circumstances.
The Court can also make the FVRO extend to any children, meaning that contacting that child may be a breach in the same way as contacting the person protected.
You’ve been served – A guide to your Do’s and Don’ts
Below is a handy table, with some quick do’s and don’ts to remember if you find yourself in the unfortunate situation of being served with an FVRO.
– Accept service of the FVRO document from the Police calmly and politely.
The Police who serve you with the FVRO usually have no idea about why it exists, and are not able to provide you with any legal advice. They are merely doing one of their many jobs.
-Read the entire document carefully.
Particularly the part that mentions what you can and cannot do, and what acts will be a breach of the order.
-Make an appointment with one of our experienced solicitors as soon as practicable to obtain proper legal advice, and to determine how best to proceed.
-Apply for a copy of the transcript of the ex parte hearing, and the application form that was lodged as soon as possible.
You can do this by completing a Form 1 Request to inspect or obtain a copy of a Court record, which can be found on the Magistrates Court of WA website via the link above.
-Become angry or aggressive towards the Police, as ultimately they are the body responsible for charging you if they believe that you have breached the order.
-Ring or attempt to make any form of contact with the person protected, their family members, or anyone else known to the person protected.
-Engage any other person to make contact on your behalf – this is often a breach that catches people out.
-Rely on information found on social media forums or second-hand information ‘from a mate of a mate’.
-Think that the person protected ‘won’t dob me in to the cops’.
They obtained the order for a reason, and will usually not hesitate to report any potential breaches to the Police.