Family Violence Restraining Orders
The term ‘Family Violence’ means physical or a threat of violence, made by a person towards a family member of the person. It also defines other behaviour that may cause family members to be scared such as being forceful or controlling.
A Family Violence Restraining Order is used to restrain a person who has:
a) Committed family violence against you and is likely to commit again or,
b) Behaves in a way that makes you believe family violence will be committed.
Examples of Family Violence include:
● Assault/ sexual assault
● Stalking/ cyber-stalking
● Repeated derogatory remarks
● Damaging property
● Harm or death to animals
● Denying a family member financial autonomy
● Withholding financial support needed for living expenses
● Preventing a family member from making connections with other family members, friends or cultures.
● Distributing or publishing personal images of the family member.
● Exposing the family members child to family violence.
If you have been attacked or threatened with violence, a criminal offence may have been committed and therefore reporting for an offence number through the police is essential. In some circumstances a Family Violence restraining order can be reported by the police via telephone at any time of day. If considered appropriate, the police will seek an urgent telephone hearing with the magistrate.
When a Family Violence Restraining Order is made, the court will also prohibit the respondent from having a firearm licence or have access to a gun. In some cases, a life-long restraining order can be made. Restraining Orders may also extend to others connected to the person who applied, such as children.
Although being bound by a Restraining Order is not a crime itself breaching the order is and can lead to time in prison. Consent is not a defence used for the breach of an order, even if the victim says it is ok. If you have been charged with breaching a family violence order or require an Apprehended Violence Order (AVO) lawyer contact our legal team today for assistance or representation.Top of Form
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Unfortunately, family violence does occur, and therefore, Australian Laws are set in place to protect a spouse, child and relatives from being victims of violence. An application can be made by the victim of domestic violence, the police or any other authorised person.
Different states have different variations as to how a protection order can be made, and therefore it Is important to speak to our Perth Legal team to get the best advice and information to help you.
The Australian Police are required to apply for a protection order on behalf of the victim, however different states will have different degrees as to which the police are responsible for acting on behalf of the victim. There is an obligation that the police will apply for a protection order in certain instances where a person is taken into custody for safety. If the victim is under the age of 16, then then only the police will be able to apply for an order. Victims over the age of 16 can initiate an order or have a lawyer act on their behalf. There are also certain authorised people who can bring an application forward and stand in on the behalf of the victim. These include:
● An affected family member.
● A person with written consent of the affected family member.
● A parent, if the affected member is a child.
● The guardian of the affected member.
Jurisdictions grant the court powers to make orders that restrain a person from any future conduct and domestic violenc. Further orders can also restrict the person from contacting and approaching the protected person within a specified distance. This could be in relation to the victim’s home, place of employment, or school. The law states that the court has power to order the violent person to be excluded from the family home, or any other property, irrespective if the person has legal rights to the property. This order is known as ‘exclusion’ and requires the court to make several considerations.
a) The importance of minimising disruption to the protected person and any children.
b) The importance of maintaining social networks and support which may be lost If the protected person were required to leave the residence.
c) The importance of steadiness and stability in the care of any child living with the protected person.
d) The importance of allowing childcare arrangements, education or employment of the protected person to continue without interruption.
If a person’s safety is an issue, the Family Violence legislation allows a protection order to be obtained quickly. Orders can be granted without the presence of the other party, which will prevent the person from behaving violently until the full hearing. This is known as an ‘Interim Order’ and can be made on the following grounds:
● To ensure the victim is safe.
● Protection of property.
● Protection of a child.
Recognition of the need for an emergency Interim Order has seen some states grant the police power to issue Family Violence Orders if the officer decides the person has committed or will commit and act of Family Violence.
If the circumstances regarding the Order changes, the authorised person or police can revoke the terms of the order. Certain requirements must be followed to prevent any influence from the defendant. The court must have regard to:
a) Any expressed wishes of the victim
b) Any current contact between the victim and defendant
c) Whether any pressure has been applied or threats have been made to the victim.
d) Any other relevant matter.
The court will only revoke the order the safety of the victim is considered. It should be noted that a person who breaches an order may be liable for criminal sanctions that can result in imprisonment or fines.
Whether you are trying to apply for a Violence Restraining Order or uphold an interim Violence Restraining order in Western Australia, our team at Klimek and Wijay can offer you legal advice and representation to ensure the best possible outcome.
If you require more information about restraining orders in WA, please contact our legal team today on (08) 9221 5775 for assistance or representation.