Restraining Orders

If you are experiencing domestic violence or family violence, you or your children may need the protection of a restraining order. Family violence is generally defined as the threatening behaviour of another family member towards you that makes you fearful, makes you do things you don’t want to do, or is used to control you.

Interim and final restraining orders are granted on the balance of probabilities if the respondent has committed personal violence and is likely in the future to commit personal violence again, or there are reasonable grounds to apprehend the respondent will commit personal violence against the applicant. However, the Court still has a discretion not to grant restraining order if it is not appropriate in the circumstances.

Interim restraining orders are granted on an ex-parte basis when the person bound is not present at the initial hearing. As a result, the person bound is entitled to receive a free copy of the application and transcript. Without those documents, the person protected does not know the grounds they have to respond. If no objection is lodged within 21 days of personal service by the WA Police upon the person bound, the interim restraining order is automatically made final.

Causing a breach of an interim or final restraining order may result in being charged and convicted of a criminal offence.

There are several options available to negotiate a restraining order. The most commonly used are conduct agreement orders, without admission consent orders, without admission undertakings, without admission mutual undertakings, and without admission withdrawals. There are advantages and disadvantages or each option depending on your circumstances and whether you are the person protected or the person bound.

If there is no agreement, the restraining order outcome is decided by a Magistrate on the balance of probabilities after all evidence is tested under cross examination at a trial. Evidence, testimony, and findings of fact made during a restraining order trial are admissible as evidence in the Family Court of WA.

Please feel welcome to contact Michael Klimek by email at michael@klimekfamilylaw.com.au or phone on 08 6141 3227 to discuss your circumstances and available options.

If you are experiencing family violence and genuinely cannot afford legal advice or representation, there is help available for you. Please contact the Northern Suburbs CLC at Mirrabooka (08 9440 1663) or Joondalup (08 9301 4413), the Subiaco Justice Centre (subiacolegalservice@gmail.com), or Legal Aid WA (1300 650 579).

If you are in immediate danger, phone 000.  For non-emergency help from the police, call 131 444.