CS Legal

Watch Out: How the changes to the Restraining Orders Act 1997 (WA) affect separation

Watch Out: How the changes to the Restraining Orders Act 1997 (WA) affect separation

By Jarred Johnstone, Lawyer, Family Law

On 1 July 2017, a new type of restraining order was introduced, namely a ‘Family Violence Restraining Order’ (“FVRO”). This is in addition to the existing ‘Violence Restraining Order’ (“VRO”) and ‘Misconduct Restraining Order’ (“MRO”) that separating families have come across.

As the name suggests, FVRO’s apply in circumstances where the parties are in a family relationship.  This definition is very broad.  It is not limited to a typical family unit of mum, dad and kids but extends to any personal relationship within a family unit and may include grandparents, aunts and uncles.

For the Court to make a FVRO, it needs to be satisfied that:

  • person B has committed family violence against person A who is seeking to be protected from person B and that person B is likely again to commit family violence against person A in the future; or
  • person A in applying for an order or person C who is applying for an order on behalf of person A has reasonable grounds to apprehend that person B will commit family violence against person A.

There has to be ‘family violence’ for a FVRO to occur and certain situations where this can be present include:

  • 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.

The Restraining Orders Act 1997 (WA) (“the Act”) further provides a number of examples of behaviour that may constitute family violence.  Some examples are:

  • 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 behaviour referred to in this section.

Take note that a person who procures another person to commit family violence is taken to have also committed the family violence so best that family members be warned.

Changes to the Violence Restraining Order (“VRO”)

First and foremost, VRO’s are no longer available to parties in a family relationship.  If there is a family relationship, the application would need to be for a FVRO.

Before 1 July 2017, the Court could make a VRO if it is satisfied that an ‘act of abuse’ has been committed to another or that a person applying for an order reasonably fears that an act of abuse will be committed.  This is no longer the case.

A second change is that the term ‘act of abuse’, which was previously not defined in the Act has been replaced with the term ‘personal violence’.  This is defined as:

  • assaulting or causing personal injury to the person;
  • kidnapping, or depriving the liberty of, the person;
  • stalking the person;
  • threatening to commit any act described in paragraph (a) or (b) against the person; or
  • if the person who commits the act has an imagined personal relationship with the person against whom the act is committed, an act that would constitute family violence if those persons were in a family relationship.

As the Act sets out the specific circumstances where personal violence takes place, the effect of this is that when parties separate or in the process of separating, it is most likely that these types of behaviour or conduct are displayed so care is required if you are facing a situation where your relationship has come to an end.

A third change is that the requirement that a person seeking protection has ‘reasonable fears’ that the other party will commit an act of abuse against the person has been replaced with a requirement that there be ‘reasonable grounds’ that the other party will commit personal violence against the person seeking protection.   This means that there is an objective assessment of fear rather than a subjective one which gives the Court a basis on how to make the assessment of the fear factor on any application made.

If you want more information about restraining orders, please contact our Family Law Team at CS Legal on (08) 9476 4499 or via our CONTACT US page.

Learn more about our FAMILY LAW services.

© CS Legal 2014. All rights reserved. Site designed and built by PPR