Responding to a Restraining Order Application in Western Australia
It is often better to resist a restraining order than to allow it to take effect
What should you do if someone applies for a restraining order against you? Many people ignore it, thinking that the order will not affect them. If you do that, you risk being subject to a criminal prosecution. You should always talk to a lawyer about the possibility of resisting the order.
Restraining Orders in Western Australia
There are three kinds of restraining orders in Western Australia. Although they can prohibit different kinds of conduct, they usually direct someone to stay away from someone else.
Violence Restraining Order
A violence restraining order (VRO) is usually used to prevent family or domestic violence, including physical, sexual, or emotional abuse of family members. Abuse includes both violence and threats of violence, as well as stalking, causing property damage, or behaving in a way that is frightening or seriously disturbing.
Misconduct Restraining Order
A misconduct restraining order (MRO) is intended to prevent acts that are intimidating, harassing, or offensive. They can also order someone not to damage another person’s property or to engage in a breach of the peace. Misconduct orders can only be entered against someone who is not in a family or domestic relationship with the person seeking the order.
The police can issue an on-the-spot restraining order if they encounter domestic violence. That order only remains in effect for 72 hours.
Breaching the Order
The breach of an MRO can result in a fine. The breach of a VRO can result in fines and imprisonment of up to two years.
How to Respond
If someone seeks a restraining order against you, the court may issue a summons directing you to come to court for a hearing on the application. You have the right to contest the order at the hearing.
You may instead be served with an interim order. Read it carefully. If you breach any of its terms, you can be charged with a criminal offence. If you want to prevent the interim order from becoming final, fill in the “objection” section on the back of the form and return it to the court within 21 days. A hearing will then be scheduled.
It is always better not to have a restraining order in effect. Even if you do not want to have contact with the person seeking the order, it is possible that you will encounter the person in a supermarket or on the street. While inadvertent contact will not violate the order, whether contact was “inadvertent” is often disputed. Innocent contact can result in a criminal charge for breaching the order, forcing you to raise your lack of intent to violate the order as a defence.
Sometime a spiteful person who obtains a VRO will try to goad you into violating it. You can try to avoid that risk by contesting the order.
You chances of defeating a restraining order application are much better if you are represented by a lawyer. It may also be possible for a lawyer to negotiate a settlement that will result in an order you can more easily obey.