Restraining Orders Act 1997
Western Australia
Restraining Orders Act 1997
Contents
Part 1 — Preliminary
1.Short title2
2.Commencement2
3.Terms used2
4.Terms used: family relationship and family member7
5.Term used: family order8
5A.Term used: family violence9
6.Term used: personal violence11
6A.Term used: exposed11
7.Persons protected, and bound, by order to be natural persons12
7A.Orders under this Act imposing restraints12
8A.Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies12
Part 1A — Restraining orders generally
8.Explanation about orders to be given13
9.Fixing a hearing15
10.Preparation and service of orders15
Part 1B — Family violence restraining order
10A.Objects18
10B.Principles to be observed in performing functions in relation to FVROs18
10C.FVRO to specify names of person bound, and person protected, by order20
10D.When FVROs may be made20
10E.FVRO may be made for child in circumstances of family violence21
10F.Matters to be considered by court generally21
10G.Restraints on respondent23
10H.Conduct agreement25
Part 1C — Behaviour management order
Division 1 — Preliminary
10I.Terms used26
10J.Objects27
10K.Application of Part27
Division 2 — Eligibility assessment order
10L.Making an eligibility assessment order27
10M.Order to attend behaviour change programme29
10N.Effect of appeal against final order30
Division 3 — Procedures relating to behaviour management order
10O.Notice of hearings31
10P.Approval of persons and of behaviour change programme31
10Q.Eligibility assessor may be required to attend hearing32
10R.Disputed eligibility assessment report32
10S.Explanation of behaviour management orders33
10T.Variation or cancellation of behaviour management orders33
10U.Service of orders34
Division 4 — Other matters
10V.Respondent’s participation in behaviour change programme35
10W.Respondent’s contravention of behaviour management order36
10X.Confidentiality of interviews and reports36
10Y.Confidentiality of behaviour change programme38
10Z.Delegation38
Part 2 — Violence restraining order
11.VRO to specify names of person bound, and person protected, by order39
11A.When VROs may be made39
12.Matters to be considered by court generally40
12A.VROs not for persons in family relationship41
13.Restraints on respondent42
Part 2A — Provisions for FVRO and VRO
Division 1 — Orders relating to firearms
14.Firearms order44
Division 1A — Duration of orders
16.Duration of FVRO or VRO generally45
16A.Duration of FVRO46
16B.Duration of VRO48
Division 2 — Telephone applications
17.Authorised magistrates49
18.Who can apply49
19.How to make telephone application50
20.When telephone application may be heard50
21.How hearing to be conducted51
23.Orders at telephone hearing52
24.Telephone order to be prepared and served52
Division 3 — Applications in person to a court
24A.Application for FVRO53
25.Application for VRO54
26.Applicant to choose whether to have hearing in absence of respondent55
27.Attendance at hearing in absence of respondent56
28.Affidavit evidence56
29.Order at hearing in absence of respondent57
30.Order to be prepared and served57
Division 3A — Police officers may make police orders where family violence
30A.When police order may be made58
30B.Matters to be considered by police officer generally59
30C.Restraints that may be imposed60
30D.Police orders against children61
30E.Police order to be served and explained61
30F.Duration of police orders62
30H.Order not to be renewed by police officer62
30I.Review of Division63
Division 4 — Procedure when interim order made
31A.Term used: respondent63
31.21 days for respondent to object64
32.Respondent does not object to final order being made64
33.Respondent objects to final order being made66
Part 3 — Misconduct restraining order
34.Grounds for misconduct restraining order68
35.Matters to be considered by court generally68
35A.MROs not for persons in family relationship70
36.Restraints on respondent70
37.Duration of MRO72
38.Application for MRO72
39.Registrar to fix hearing and issue summons73
Part 4 — Hearings and evidence
Division 1 — Mention hearings
40.Attendance at hearing74
41.Consent order or final order hearing to be fixed74
Division 2 — Final order hearings
42.Attendance at final order hearing75
43.Making final order76
43A.Decision under s. 42 in default of appearance may be set aside77
44.Order to be prepared and served79
Division 3 — Evidence
44A.Rules of evidence not to apply in certain circumstances80
44B.Access to affidavit evidence81
44C.Cross‑examination of certain persons81
Part 5 — Variation or cancellation
45.Application83
45A.Application by CEO (child welfare)84
46.Leave hearing84
47.Registrar to issue summons85
48.Attendance at hearing86
48A.Ex parte application to cancel order by person protected by order88
49.Variation or cancellation88
49A.Correcting minor errors in restraining orders89
49B.Matters to be considered by court generally90
Part 6 — General
Division 1 — Children
50.No restraining orders against children under 1091
50A.Restraining order against child not to exceed 6 months91
50B.Child welfare laws not affected91
50C.CEO (child welfare) to be notified before certain FVROs or VROs are made92
50D.Intervention by CEO (child welfare)93
51.Responsible adult to attend93
52.Transfer between courts93
53.Telephone order made against child94
53A.Children not to give oral evidence without leave of court, other than in Children’s Court95
53B.Evidence of children95
53C.Child who gives evidence entitled to support96
53D.Cross‑examination of child by unrepresented person96
53E.Admissibility of evidence of representations made by children96
53F.Summonsing of children97
53G.Arrangements for care and wellbeing of children bound by restraining orders97
Division 2 — Service
54.Service of summons98
55.Service of restraining order98
56.Delivery or notification100
57.Copy of document sufficient for service100
58.Proof of service100
59.Service of restraining order, certain people to be notified of101
60.Substituted service102
Division 3 — Breach of restraining order or police order
61.Breach of restraining order103
61A.Penalty for repeated breach of restraining order104
61B.Protected person aiding breach of restraining order or police order106
61C.Report under s. 10V to be considered in sentencing for breach of FVRO107
62.Defence107
Division 3A — Police functions
62A.Investigation of suspected family violence108
62B.Entry and search of premises if family violence suspected108
62C.Action to be taken by police officer after investigating suspected family violence110
62D.Approval of senior officer111
62E.Seizure of firearms112
62F.Detention of respondent during telephone hearing or while police order is being made113
62G.Police officer may conduct hearing for applicant114
Division 4 — General
63.Making restraining orders during other proceedings114
63A.FVRO or VRO made if certain violent personal offences committed118
63B.Circumstances to be taken into account when sentencing for certain offences119
63C.Criminal and civil liability not affected by restraining orders120
63D.Court to give reasons for certain decisions120
64.Appeals121
65.Orders not to conflict with certain family orders122
66.Notification of family orders123
67.Adjournments124
68.Orders may be extended to apply to other people124
69.Costs125
70.Information on identity of certain person restricted125
70A.Exchange of information127
71.Notification when firearms order made128
72.Practice and procedure generally131
72A.Forms131
73.Regulation making power132
73A.Review of certain amendments relating to FVROs132
Part 7 — Interstate restraining orders
74.Terms used134
74A.Interstate DVOs under Domestic Violence Orders (National Recognition) Act 2017 cannot be registered134
74B.Interstate orders registered before commencement of Domestic Violence Orders (National Recognition) Act 2017134
75.Application for registration of interstate order135
76.Registration136
77.Effect of registration137
78.Variation or cancellation in another State or Territory137
79.Variation or cancellation in this State138
Part 7A — Foreign restraining orders
79A.Recognition of foreign restraining orders140
79B.Applying for registration of foreign restraining orders140
79C.Registration of foreign restraining orders141
79D.Effect of registration141
79E.Variation or cancellation in foreign country142
79F.Variation or cancellation in this State143
Notes
Compilation table144
Uncommenced provisions table146
Other notes146
Defined terms
Western Australia
Restraining Orders Act 1997
An Act to provide for orders to restrain people from committing family violence or personal violence by imposing restraints on their behaviour and activities, and for related purposes.
[Long title amended: No. 38 of 2004 s. 4; No. 49 of 2016 s. 4.]
This Act may be cited as the Restraining Orders Act 1997.
This Act comes into operation on such day as is fixed by proclamation.
(1)In this Act unless the contrary intention appears —
affidavit includes an electronic declaration made in accordance with the rules of court;
application means an application made under this Act or the Domestic Violence Orders (National Recognition) Act 2017;
assault includes an assault within the meaning of The Criminal Code;
authorised magistrate means a magistrate authorised under section 17(1)(a);
authorised person means a police officer or a person who is, or who is in a class of persons that is, prescribed in the regulations for the purposes of this definition;
CEO (child welfare) means the CEO within the meaning of the Children and Community Services Act 2004;
child means a person under 18 years of age;
child welfare officer means —
(a)the CEO as defined in section 3 of the Children and Community Services Act 2004; or
(b)a person who is an authorised officer for the purposes of section 37 of that Act;
Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892;
conduct agreement order has the meaning given in section 10H(1);
consent order means an order made under section 41(1) or 43(2);
corresponding law, in relation to another State or Territory or a foreign country, means a law of that State, Territory or country that empowers a court of that State, Territory or country to make orders (however described) having an effect that is the same as or similar to the effect of restraining orders made under this Act;
court includes an authorised magistrate;
cyber‑stalking, in relation to a person, means stalking, monitoring the movement or communications of, or repeatedly communicating with or harassing, the person using electronic means;
distributes has the meaning given in The Criminal Code section 221BA;
exposed, in relation to family violence or personal violence, has the meaning given in section 6A(1);
family member has the meaning given in section 4(3);
family order has the meaning given in section 5;
family violence has the meaning given in section 5A(1);
family violence restraining order means an order made under this Act imposing restraints of the kind referred to in section 10G;
final order means any of the following —
(a)in relation to an FVRO, a conduct agreement order;
(b)in relation to a VRO or MRO, a consent order;
(c)a restraining order that becomes a final order under section 32;
(d)a restraining order made under section 40(3);
(e)a restraining order made at a final order hearing;
(f)a restraining order made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section;
(g)a restraining order that is a final order under section 63(4a) or 63A(3);
final order hearing means a hearing fixed under section 33(1), 40(3), 41(4) or 43A(7)(b);
firearm has the same meaning as it has in the Firearms Act 1973;
firearms licence means —
(a)a licence issued, permit granted or approval given, under the Firearms Act 1973, entitling a person to be in possession of a firearm; and
(b)a Firearms Act Extract of Licence issued under the Firearms Act 1973;
fix a hearing has the meaning given in section 9;
foreign restraining order means an order (however described) made by a court of a foreign country under a corresponding law of the country;
imagined personal relationship means a relationship where one person claims to have, or have had, an intimate personal relationship, or other personal relationship, with another person but that other person disagrees with that claim;
interim order means a telephone order or an order made under section 29(1)(a), 43A(7)(a) or 63(4b), the duration of which is more than 72 hours;
intimate image has the meaning given in The Criminal Code section 221BA;
kidnapping, or depriving the liberty of a person includes behaving towards the person in a manner described in The Criminal Code section 332;
legal practitioner means an Australian legal practitioner as defined in the Legal Profession Act 2008 section 3;
mention hearing means a hearing fixed under section 23(2), 26(3), 29(2) or 39;
misconduct restraining order means an order made under this Act imposing restraints of the kind referred to in section 36;
person protected means a person named in an order made under this Act as a person for whose benefit the order is made;
person seeking to be protected means —
(a)the person who has applied for a restraining order; or
(b)if an application for a restraining order has been made on behalf of another person, the person on behalf of whom the application is made;
person who is bound, in relation to an order made under this Act, means the person named in the order on whose lawful activities and behaviour restraints are imposed by the order;
personal violence has the meaning given in section 6;
police order means an order made by a police officer under Part 2 Division 3A;
prepare and serve has the meaning given in section 10;
prescribed form means a form prescribed in rules of court;
proceedings under this Act means —
(a)the hearing of an application; or
(b)proceedings for an offence against this Act;
property, in relation to a person, means property —
(a)owned by the person; or
(b)in the care or custody of the person; or
(c)used or enjoyed by the person, or available for the person’s use or enjoyment; or
(d)at premises where the person lives or works;
Public Advocate means the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1990;
registered, in relation to a foreign restraining order, means registered under section 79C;
registrar means the registrar of the relevant court;
respondent means the person against whom a restraining order is sought;
restraining order means an FVRO, MRO or VRO;
satisfied means satisfied on the balance of probabilities;
sexual assault includes an offence under The Criminal Code Chapter XXXI;
specified in relation to a restraining order, means specified in the order;
stalking, a person, includes committing an offence under The Criminal Code Chapter XXXIIIB against the person;
telephone application means an application under Division 2 for an FVRO or VRO;
telephone order means an FVRO or VRO made on a telephone application;
violence restraining order means an order made under this Act imposing restraints of the kind referred to in section 13;
wellbeing has the same meaning as in the Children and Community Services Act 2004.
(2)In this Act the following abbreviations are used —
FVRO for family violence restraining order;
MRO for misconduct restraining order;
VRO for violence restraining order.
[Section 3 amended: No. 10 of 1998 s. 62(1); No. 11 of 1999 s. 4; No. 22 of 2000 s. 4; No. 34 of 2004 Sch. 2 cl. 23(2); No. 38 of 2004 s. 5, 18(2), 25(2) and (3) and 57(2)‑(4); No. 59 of 2004 s. 124; No. 5 of 2008 s. 90; No. 49 of 2016 s. 5; No. 10 of 2017 s. 45; No. 4 of 2019 s. 9; No. 13 of 2020 s. 30.]
4.Terms used: family relationship and family member
(1)In this Act —
family relationship means a relationship between 2 persons —
(a)who are, or were, married to each other; or
(b)who are, or were, in a de facto relationship with each other; or
(c)who are, or were, related to each other; or
(d)one of whom is a child who —
(i)ordinarily resides, or resided, with the other person; or
(ii)regularly resides or stays, or resided or stayed, with the other person;
or
(e)one of whom is, or was, a child of whom the other person is a guardian; or
(f)who have, or had, an intimate personal relationship, or other personal relationship, with each other.
(2)In subsection (1) —
other personal relationship means a personal relationship of a domestic nature in which the lives of the persons are, or were, interrelated and the actions of one person affects, or affected, the other person;
related, in relation to a person, means a person who —
(a)is related to that person taking into consideration the cultural, social or religious backgrounds of the 2 persons; or
(b)is related to the person’s —
(i)spouse or former spouse; or
(ii)de facto partner or former de facto partner.
(3)In this Act a person is a family member of another person if the persons are in a family relationship.
[Section 4 inserted: No. 38 of 2004 s. 6; amended: No. 49 of 2016 s. 6.]
(1)A reference in this Act to a family order is a reference to —
(a)a parenting order made under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997, as is relevant to the case, that deals with —
(i)the person or persons with whom a child is to live; or
(ii)the time a child is to spend with another person or other persons; or
(iii)the communication a child is to have with another person or other persons;
[(b)deleted]
(c)any of the things set out in subsection (2) —
(i)to the extent that the thing deals with the person or persons with whom a child is to live; or
(ii)to the extent that the thing requires or authorises (expressly or impliedly) contact between a child and another person or other persons;
(d)a right or liability within the meaning of the Family Court of Western Australia (Orders of Registrars) Act 1997 of the Commonwealth that —
(i)is in respect of a matter to which paragraph (a), (b) or (c) applies; and
(ii)is conferred, imposed or affected by section 5 of that Act.
Note:
The effects of the transitional provisions of the Family Law Reform Act 1995 of the Commonwealth apply to rights and liabilities referred to in the Family Court of Western Australia (Orders of Registrars) Act 1997 of the Commonwealth — s. 4(5) of the latter Act.
(2)The things referred to in subsection (1)(c) are —
(a)a recovery order or any other order (however described) made; or
(b)an injunction granted; or
(c)an undertaking given to, and accepted by, a court; or
(d)a parenting plan, whether registered or not; or
(e)a bond entered into in accordance with an order,
under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997, as is relevant to the case, or any thing treated, under either of those Acts or the Family Law Reform Act 1995 of the Commonwealth, as an order or thing referred to in subsection (1).
Note:
Under clause 5 of Schedule 2 to the Family Court Act 1997 the effects of the transitional provisions in that clause apply to rights and liabilities referred to in the Family Court (Orders of Registrars) Act 1997.
[Section 5 inserted: No. 41 of 1997 s. 36; amended: No. 35 of 2006 s. 207.]
(1)A reference in this Act to family violence is a reference to —
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) the following —
(a)an assault against the family member;
(b)a sexual assault or other sexually abusive behaviour against the family member;
(c)stalking or cyber‑stalking the family member;
(d)repeated derogatory remarks against the family member;
(e)damaging or destroying property of the family member;
(f)causing death or injury to an animal that is the property of the family member;
(g)unreasonably denying the family member the financial autonomy that the member would otherwise have had;
(h)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;
(i)preventing the family member from making or keeping connections with the member’s family, friends or culture;
(j)kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
(k)distributing an intimate image of the family member without the family member’s consent, or threatening to distribute the image;
(l)causing any family member who is a child to be exposed to behaviour referred to in this section.
(3)For the purposes of this Act, a person who procures another person to commit family violence is taken to have also committed the family violence.
[Section 5A inserted: No. 49 of 2016 s. 7; amended: No. 4 of 2019 s. 10.]
6.Term used: personal violence
[(1)deleted]
(2)In this Act —
personal violence means one of the following acts that a person commits against another person with whom he or she is not in a family relationship —
(a)assaulting or causing personal injury to the person;
(b)kidnapping, or depriving the liberty of, the person;
(c)stalking the person;
(d)threatening to commit any act described in paragraph (a) or (b) against the person;
(e)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.
(3)For the purposes of this Act, a person who procures another person to commit personal violence is taken to have also committed the personal violence.
[Section 6 inserted: No. 38 of 2004 s. 7; amended: No. 5 of 2008 s. 91; No. 49 of 2016 s. 8.]
(1)For the purposes of this Act, a child is exposed to family violence or personal violence if the child sees or hears the violence or otherwise experiences the effects of the violence.
(2)Examples of situations that may constitute a child being exposed to family violence or personal violence include (but are not limited to) the child —
(a)overhearing threats of death or personal injury to a person; or
(b)seeing or hearing an assault of a person; or
(c)comforting or providing assistance to a person who has been assaulted; or
(d)cleaning up a site after property damage; or
(e)being present when police or ambulance officers attend an incident involving the violence.
[Section 6A inserted: No. 49 of 2016 s. 9.]
7.Persons protected, and bound, by order to be natural persons
A person protected by an order under this Act, and a person who is bound by an order under this Act, must be natural persons.
[Section 7 inserted: No. 38 of 2004 s. 8; amended: No. 49 of 2016 s. 10.]
7A.Orders under this Act imposing restraints
An order imposing restraints may be made under this Act by —
(a)the Magistrates Court hearing an application under section 24A, 25, 38 or 45; or
(b)the Children’s Court hearing an application under section 24A, 25, 38 or 45; or
(c)an authorised magistrate hearing a telephone application; or
(d)a court acting under section 63 or 63A; or
(e)a police officer acting under Part 2 Division 3A.
[Section 7A inserted: No. 38 of 2004 s. 8; amended: No. 59 of 2004 s. 124; No. 49 of 2016 s. 11.]
8A.Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies
The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act.
[Section 8A inserted: No. 20 of 2013 s. 109.]
Part 1A — Restraining orders generally
[Heading inserted: No. 38 of 2004 s. 9.]
8.Explanation about orders to be given
(1)Subject to this section, a court that makes a restraining order is to explain, as is appropriate, to —
(a)the person who is bound by the order; and
(b)the —
(i)person protected by the order; or
(ii)parent or guardian of that person, if the parent or guardian made the application for the order on behalf of that person,
who are in court when the order is made —
(c)the purpose, terms and effects of the order, including that the order may be registered and enforced in another Australian jurisdiction; and
(d)the consequences that may follow if the person who is bound by the order contravenes the order; and
(e)the consequences that may follow if the person protected by the order —
(i)encourages or invites the person who is bound by the order to contravene the order; or
(ii)by his or her actions causes the person who is bound by the order to breach the order;
and
(f)that the order must be varied or cancelled if the person who is bound by the order and the person protected by the order intend to have contact or reconcile with the other person; and
(g)how the order may be varied, cancelled or extended; and
(h)if the order is an FVRO or VRO, the effects of sections 14 and 62E relating to firearms; and
(ha)if the order is an FVRO, the effect of the Domestic Violence Orders (National Recognition) Act 2017;
(i)that counselling and support services may be of assistance, and where appropriate, the court is to refer the person to specific services.
(2)If a person to whom an explanation is to be given under subsection (1) does not readily understand English, or the court is not satisfied that the person understood the explanation, the court is, as far as practicable, to arrange for someone else who is 16 years of age or older to give the explanation to the person in a way that the person can understand.
(3)If —
(a)a person referred to in subsection (1)(a) or (b) is not present in court when the order is made; or
(b)it is not practicable for the court to give the explanation at the time the restraining order is made,
then the registrar is to cause a document containing the explanation to be —
(c)in the case of subsection (1)(a), served on the person; and
(d)in the case of subsection (1)(b), delivered to the person.
(4)An order is not invalid merely because a person who should have been given the explanation referred to in subsection (1) was not given the explanation.
[Section 8 inserted: No. 38 of 2004 s. 9; amended: No. 59 of 2004 s. 123; No. 49 of 2016 s. 12; No. 10 of 2017 s. 46.]
The rules of court may make provision for —
(a)fixing, selecting or arranging a day, time and place for a hearing; and
(b)requiring a person to attend a hearing; and
(c)preparing, or arranging for the preparation of, a summons in the prescribed form; and
(d)causing a summons to be served on a person; and
(e)notifying all other parties of the hearing.
[Section 9 inserted: No. 13 of 2020 s. 31.]
10.Preparation and service of orders
(1)A restraining order may be prepared in a manner authorised under the rules of court and the rules may make provision for —
(a)serving the respondent’s copy and the respondent’s endorsement copy (if 1 is required to be served) of the order on the person who is bound by the order; and
(b)delivering the applicant’s copy of the order to —
(i)the person seeking to be protected by the order; or
(ii)the parent or guardian of that person, if the parent or guardian made the application for the order on behalf of that person;
and
(c)delivering the police copy of the order to the Commissioner of Police; and
(d)placing the court copy of the order on the court’s records.
(1A)If a restraining order is taken to have been served under section 55(3a), the respondent’s copy and the respondent’s endorsement copy are not required to be served under rules of court made under subsection (1)(a) but are to be —
(a)delivered to the respondent; and
(b)if rules of court make provision for delivery under paragraph (a) — delivered in accordance with those rules.
(2)If an authorised person is to prepare and serve a telephone order the person is to prepare the order in the prescribed form in accordance with the instructions of the authorised magistrate who made the order and cause —
(a)the respondent’s copy and the respondent’s endorsement copy of the order to be served on the respondent; and
(b)the applicant’s copy of the order to be delivered to —
(i)the person seeking to be protected by the order; or
(ii)the parent or guardian of that person, where the parent or guardian made the application for the order on behalf of that person;
and
(c)the police copy of the order to be delivered to the Commissioner of Police; and
(d)the court copy of the order to be delivered to the Magistrates Court at the place where the authorised magistrate who made the order sits.
(3)The registrar of the Magistrates Court to which the court copy of the order is delivered under subsection (2)(d) is to cause the order to be delivered to the authorised magistrate who made it and a copy of it to be delivered —
(a)if the respondent is a child, to the Children’s Court; or
(b)otherwise, to the Magistrates Court,
at the place nearest to where the respondent lives.
(3a)The registrar of the court to which an order is delivered under subsection (3) is to register it.
(4)If a police officer is to prepare and serve a police order the officer is to prepare the order in the form prescribed in the regulations and cause —
(a)the person to be bound by the order to be personally served with it; and
(b)a copy of the order to be given to the person for whose benefit the order is to be made; and
(c)the police copy of the order to be delivered to the Commissioner of Police.
[Section 10 amended: No. 38 of 2004 s. 10, 18(3) and 38(4); No. 59 of 2004 s. 123 and 124; No. 5 of 2008 s. 92; No. 49 of 2016 s. 13; No. 13 of 2020 s. 32.]
Part 1B — Family violence restraining order
[Heading inserted: No. 49 of 2016 s. 14.]
The objects of this Part are as follows —
(a)to maximise the safety of persons who have experienced, or are at risk of, family violence;
(b)to prevent, or reduce to the greatest extent possible, the incidence and consequences of family violence;
(c)to protect the wellbeing of children by preventing them from being subjected or exposed to family violence;
(d)to encourage perpetrators of family violence to accept responsibility for their behaviour and the effect it has on others;
(e)to make perpetrators of family violence accountable to the court for contraventions of court‑imposed restrictions designed to prevent them from committing further family violence.
[Section 10A inserted: No. 49 of 2016 s. 14.]
10B.Principles to be observed in performing functions in relation to FVROs
(1)In performing a function under this Act relating to FVROs, a person, court or other body must have regard to the following —
(a)the need to ensure that persons at risk of family violence are protected from that violence;
(b)the need to prevent behaviour that could reasonably be expected to cause a person to apprehend that they will have family violence committed against them;
(c)the particular need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being subjected or exposed to family violence;
(d)that perpetrators of family violence are solely responsible for that violence and its impact on others and should be held accountable accordingly;
(e)that complex emotional factors arising from coercion, control and fear often make it difficult for victims of family violence to report the violence or leave a family relationship in which family violence is being committed;
(f)the need to understand the impact of factors such as culture (including Aboriginal and Torres Strait Island culture), language, sexual orientation, gender identity, age, disability and remoteness of location in reporting family violence or leaving a family relationship in which family violence is being committed;
(g)that perpetrators of family violence who are children have special needs and that these must be taken into account;
(h)the need to identify, to the extent possible, the person or persons in a family relationship most in need of protection from family violence, including in situations where 2 or more family members are committing that violence;
(i)the need to recognise that perpetrators of family violence might seek to misuse the protections available under this Act to further their violence, and the need to prevent that misuse;
(j)that in order to encourage victims of family violence to report that violence and seek help, proceedings under this Act should be conducted in a way that treats victims with respect and dignity and endeavours to reduce the degree to which victims might be subject to re‑traumatisation during those proceedings.
(2)The person, court or other body is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
[Section 10B inserted: No. 49 of 2016 s. 14.]
10C.FVRO to specify names of person bound, and person protected, by order
An FVRO is to specify —
(a)the name of the person for whose benefit the order is made; and
(b)the name of the person on whose lawful activities and behaviour restraints are imposed by the order.
[Section 10C inserted: No. 49 of 2016 s. 14.]
(1)A court may make an FVRO if it is satisfied that —
(a)the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
[Section 10D inserted: No. 49 of 2016 s. 14.]
10E.FVRO may be made for child in circumstances of family violence
(1)An FVRO may be made for the benefit of a child if the court is satisfied that —
(a)the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or
(b)the applicant, the child or a person with whom the child is in a family relationship has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
[Section 10E inserted: No. 49 of 2016 s. 14.]
10F.Matters to be considered by court generally
(1)When considering whether to make an FVRO and the terms of the order, a court is to have regard to the following —
(a)the need to ensure that the person seeking to be protected is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them;
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being subjected or exposed to family violence;
(d)the accommodation needs of the respondent and the person seeking to be protected;
(e)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not;
(f)hardship that may be caused to the respondent if the order is made;
(g)any family orders;
(h)other current legal proceedings involving the respondent or the person seeking to be protected;
(i)any criminal convictions of the respondent;
(j)any police orders made against the respondent;
(k)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
(l)any police incident reports relating to the respondent;
(m)any risk assessment, or risk‑relevant information, relating to the relationship between the respondent and the person seeking to be protected;
(n)any other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
(3)In having regard to the matters set out in subsection (1)(e), a past history of applications under this Act is not to be regarded in itself as sufficient to give rise to any presumption as to the merits of the application.
(4)The Commissioner of Police, is, where practicable, to provide to a court any information in the possession of the Police Force of Western Australia referred to in subsection (1)(i), (j) or (l) that is relevant to a matter before the court.
(5)The information is to be provided in the form of a certificate signed by —
(a)a police officer of or above the rank of sergeant; or
(b)a person —
(i)employed or engaged in the department of the Public Service principally assisting the Minister in the administration of the Police Act 1892; and
(ii)approved by the Commissioner of Police for the purposes of this subsection.
(6)The certificate is prima facie evidence of the matters specified in it, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was a police officer of or above the rank of sergeant or a person referred to in subsection (5)(b), as the case requires.
(7)In addition to subsections (3) to (6), the court may have regard to any of its own records for the purposes of subsection (1).
(8)Records referred to in subsection (7) are taken to be proof of their contents in the absence of evidence to the contrary.
[Section 10F inserted: No. 49 of 2016 s. 14.]
(1)In making an FVRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent —
(a)committing family violence against the person seeking to be protected; or
(b)if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or
(c)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
(2)Without limiting the restraints that may be imposed under subsection (1), a court may restrain the respondent from doing all or any of the following —
(a)being on or near premises where the person seeking to be protected lives or works;
(b)being on or near specified premises or in a specified locality or place;
(c)approaching within a specified distance of the person seeking to be protected;
(d)stalking or cyber‑stalking the person seeking to be protected;
(e)communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;
(f)preventing the person seeking to be protected from obtaining and using personal property reasonably needed by the person seeking to be protected, even if the respondent is the owner of, or has a right to be in possession of, the property;
(g)distributing an intimate image of the person seeking to be protected, or threatening to distribute the image;
(h)causing or allowing another person to engage in conduct of a type referred to in paragraphs (a) to (g).
(3)A restraint may be imposed on the respondent on such terms as the court considers appropriate.
(4)An FVRO may restrain the respondent from entering or remaining in a place, or restrict the respondent’s access to a place, even if the respondent has a legal or equitable right to be at the place.
(5)If an FVRO imposes a restraint referred to in subsection (4), or for some other reason the court is satisfied that it is necessary to do so, the court is to ensure that the order makes provision for the person seeking to be protected, or the respondent, to recover personal property, and other property of a kind prescribed in the regulations, from a place specified in the order —
(a)in the manner set out by the court in the order; or
(b)in accordance with the procedures set out in the regulations.
(6)An FVRO may inform the respondent that certain behaviour and activities are unlawful.
[Section 10G inserted: No. 49 of 2016 s. 14; amended: No. 4 of 2019 s. 11.]
(1)If, at any stage of proceedings under this Act relating to an FVRO, the respondent agrees (a conduct agreement) to the making of a final order imposing restraints of the kind referred to in section 10G (a conduct agreement order), the court may make the order without being satisfied there are grounds for making an FVRO in the same terms.
(2)A conduct agreement does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant FVRO.
(3)A conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of this Act.
(4)The registrar must cause a conduct agreement order to be prepared and served on the respondent.
[Section 10H inserted: No. 49 of 2016 s. 14.]
Part 1C — Behaviour management order
[Heading inserted: No. 49 of 2016 s. 14.]
[Heading inserted: No. 49 of 2016 s. 14.]
In this Part —
behaviour change order has the meaning given in section 10M(1);
behaviour change programme has the meaning given in section 10P(2);
behaviour change programme provider has the meaning given in section 10P(3);
behaviour management order means —
(a)an eligibility assessment order; or
(b)a behaviour change order;
court means a court prescribed in the regulations for the purposes of this Part;
eligibility assessment interview has the meaning given in section 10L(1)(b);
eligibility assessment order has the meaning given in section 10L(1);
eligibility assessment report has the meaning given in section 10L(1)(a);
eligibility assessor has the meaning given in section 10P(1).
proceeding means a proceeding under this Part;
variation or cancellation order has the meaning given in section 10T.
[Section 10I inserted: No. 49 of 2016 s. 14.]
The objects of this Part are to provide for a court that has made a final order that is an FVRO to make an additional order —
(a)to assess the eligibility of the respondent for a programme designed —
(i)to encourage the respondent to accept responsibility for the respondent’s family violence and the effect it has on others; and
(ii)to encourage the respondent to stop committing further family violence;
and
(b)if appropriate, to require the respondent to attend the programme.
[Section 10J inserted: No. 49 of 2016 s. 14.]
This Part applies to a respondent only if —
(a)a final order that is an FVRO has been made against the respondent; and
(b)the respondent is an adult.
[Section 10K inserted: No. 49 of 2016 s. 14.]
Division 2 — Eligibility assessment order
[Heading inserted: No. 49 of 2016 s. 14.]
10L.Making an eligibility assessment order
(1)The court may, on the application of the person protected by the final order or on its own initiative, make an order requiring —
(a)an eligibility assessor to give a report (an eligibility assessment report) to the court, by a date specified in the order, on whether the respondent is eligible to attend a behaviour change programme; and
(b)the respondent to attend an interview (an eligibility assessment interview) with the eligibility assessor for the purposes of preparing the eligibility assessment report.
(2)However, a court is not to make an eligibility assessment order if —
(a)there is already in force a behaviour management order in respect of the respondent; or
(b)the court is satisfied that —
(i)there is no behaviour change programme that is reasonably practicable for the respondent to attend; or
(ii)in all the circumstances of the case, it is not appropriate to make the order.
(3)The eligibility assessment report must assess the respondent as eligible to attend a behaviour change programme unless the eligibility assessor considers that the respondent does not have the ability or capacity to participate in a behaviour change programme because of one or more of the following —
(a)the respondent’s character, personal history or language skills;
(b)any disabilities of the respondent;
(c)any severe mental health conditions of the respondent;
(d)any alcohol or other drug problems of the respondent;
(e)any other matters that the eligibility assessor considers relevant.
(4)An eligibility assessment order must —
(a)specify the date by which the respondent must undergo an eligibility assessment interview; and
(b)require the eligibility assessor to give reasonable written notice to the respondent of the interview; and
(c)require the respondent to attend that interview.
(5)A respondent who, without reasonable excuse, contravenes an eligibility assessment order by failing to attend the eligibility assessment interview commits an offence.
Penalty for this subsection: a fine of $1 000.
(6)The respondent is taken to have contravened the order by failing to attend the eligibility assessment interview if the respondent does not attend the interview at the time and place specified in the notice under subsection (4)(b).
[Section 10L inserted: No. 49 of 2016 s. 14.]
10M.Order to attend behaviour change programme
(1)If a court is given an eligibility assessment report and is satisfied that the respondent is eligible to attend a behaviour change programme, it must make an order (a behaviour change order) requiring the respondent to attend the behaviour change programme.
(2)However, a court is not required to make the order if —
(a)there is already in force a behaviour change order in respect of the respondent; or
(b)the court is satisfied that —
(i)there is no behaviour change programme that is reasonably practicable for the respondent to attend; or
(ii)in all the circumstances of the case, it is not appropriate to make the order.
(3)An order under subsection (1) must —
(a)specify the date by which the respondent must contact the behaviour change programme provider; and
(b)require the behaviour change programme provider to give reasonable written notice to the respondent of the behaviour change programme sessions to be conducted in the course of that programme; and
(c)require the respondent to attend each of those sessions.
(4)A respondent who, without reasonable excuse, contravenes a behaviour change order by failing to attend a behaviour change programme commits an offence.
Penalty for this subsection: a fine of $1 000.
(5)The respondent is taken to have contravened the order by failing to attend a behaviour change programme if the respondent does not attend a behaviour change programme session at the time and place specified in the notice under subsection (3)(b).
(6)A respondent who contravenes a behaviour change order is only liable to be prosecuted once for an offence against subsection (4), regardless of how many behaviour change programme sessions the respondent fails to attend.
[Section 10M inserted: No. 49 of 2016 s. 14.]
10N.Effect of appeal against final order
(1)If an appeal is lodged under section 64 against a decision to make a final order against a respondent —
(a)the operation of a related behaviour management order in respect of the respondent is stayed for any period during which the operation of the whole of the final order is stayed; and
(b)a related behaviour management order in respect of the respondent ceases to be in force if the effect of the appeal is that the final order ceases to be in force, unless the court hearing the appeal makes an order to the contrary.
(2)A behaviour management order in respect of a respondent does not otherwise cease to be in force merely because the related final order made against the respondent ceases to be in force.
[Section 10N inserted: No. 49 of 2016 s. 14.]
Division 3 — Procedures relating to behaviour management order
[Heading inserted: No. 49 of 2016 s. 14.]
(1)Before a court makes a behaviour management order, or varies or cancels a behaviour management order, a registrar for the court must cause the notice of the hearing to be served on the respondent.
(2)The court may make the order in the respondent’s absence if the respondent fails to attend the hearing.
(3)Despite subsection (1), if the respondent is before a court when it makes a final order against the respondent, the court may make an eligibility assessment order, without giving any notice to the respondent, immediately after it makes the final order.
[Section 10O inserted: No. 49 of 2016 s. 14.]
10P.Approval of persons and of behaviour change programme
(1)The Minister may approve, in writing, any person (an eligibility assessor) who the Minister considers has appropriate experience and qualifications to conduct eligibility assessment interviews and prepare eligibility assessment reports.
(2)The Minister may approve, in writing, a programme (a behaviour change programme) that the Minister considers appropriate to —
(a)facilitate the acceptance by a respondent of responsibility for the respondent’s family violence and the effect it has on others; and
(b)encourage the respondent to stop committing further family violence; and
(c)deal with any other issues relating to the perpetrators of family violence.
(3)For the purposes of subsection (2), the Minister is to specify the person or body providing a behaviour change programme (a behaviour change programme provider).
(4)The Minister must make available to a court if asked —
(a)a list of the persons approved under subsection (1) and their contact details; and
(b)a list of the behaviour change programmes approved under subsection (2); and
(c)the contact details of the behaviour change programme providers under subsection (3).
[Section 10P inserted: No. 49 of 2016 s. 14.]
10Q.Eligibility assessor may be required to attend hearing
(1)The court or the respondent may require an eligibility assessor to attend to give evidence at the hearing of the proceeding to which the report relates by filing a written notice with the court as soon as possible and, if practicable, not later than 2 working days before the hearing.
(2)On the filing of a notice, a registrar for the court must immediately arrange for the person concerned to be notified that the person’s attendance is required on the date stated in the notice.
(3)A person who under this section, has been required by the respondent to attend the hearing of a proceeding must, if required by the respondent, be called as a witness and may be cross‑examined by the respondent on the contents of the eligibility assessment report.
[Section 10Q inserted: No. 49 of 2016 s. 14.]
10R.Disputed eligibility assessment report
(1)If the respondent disputes any matter in an eligibility assessment report, the court must not take the disputed matter into consideration when determining the proceeding unless it is satisfied, on the balance of probabilities, that the matter is true.
(2)The court must not, without the respondent’s consent, take into consideration an eligibility assessment report, or part of such a report, when determining the proceeding if —
(a)the respondent disputes all or part of the report; and
(b)the eligibility assessor who gave the report to the court does not attend the hearing of the proceeding despite having been required to attend under section 10Q.
[Section 10R inserted: No. 49 of 2016 s. 14.]
10S.Explanation of behaviour management orders
If a court proposes to make a behaviour management order and the respondent is before the court, it must explain to the respondent before making the order —
(a)the purpose, terms and effect of the proposed order; and
(b)the consequences that may follow if the respondent fails to comply with the terms of the proposed order; and
(c)the means by which the proposed order may be varied or cancelled.
[Section 10S inserted: No. 49 of 2016 s. 14.]
10T.Variation or cancellation of behaviour management orders
(1)A court may make an order (a variation or cancellation order) varying or cancelling a behaviour management order if —
(a)in relation to a behaviour management order —
(i)there is no longer any behaviour change programme that is reasonably practicable for the respondent to attend; or
(ii)in all the circumstances of the case, the order is no longer appropriate for any other reason;
or
(b)in relation to a behaviour change order, there has been a change in the circumstances in which the order was made that significantly impacts on the respondent’s ability or capacity to participate in a behaviour change programme.
(2)A court may make the order on its own initiative or on the application of —
(a)the respondent; or
(b)in relation to an eligibility assessment order, the eligibility assessor; or
(c)in relation to a behaviour change order, the behaviour change programme provider.
(3)The appropriate registrar for the court must cause a copy of an application under subsection (2) to be served on —
(a)in relation to an application by the respondent, the eligibility assessor or behaviour change programme provider, as the case may be; or
(b)in relation to an application by the eligibility assessor or behaviour change programme provider, the respondent.
[Section 10T inserted: No. 49 of 2016 s. 14.]
(1)If a court makes a behaviour management order, the registrar is to prepare the order in the prescribed form and —
(a)cause the respondent’s copy and the respondent’s endorsement copy (if one is required to be served) of the order to be served on the person who is bound by the order; and
(b)cause the applicant’s copy of the order to be delivered to —
(i)in relation to an eligibility assessment order, or a variation or cancellation order relating to an eligibility assessment order, the eligibility assessor; or
(ii)in relation to a behaviour change order, or a variation or cancellation order relating to a behaviour change order, the behaviour change programme provider.
(2)The registrar must cause a copy of the eligibility assessment report, a report under section 10V or a certificate under section 10W to be served on the respondent as soon as practicable, and not later than 10 days after a court receives the report or certificate, as the case requires.
[Section 10U inserted: No. 49 of 2016 s. 14.]
[Heading inserted: No. 49 of 2016 s. 14.]
10V.Respondent’s participation in behaviour change programme
(1)This section applies if a respondent participates in a behaviour change programme.
(2)The behaviour change programme provider must, as soon as practicable after the end of a programme, provide a report, in the prescribed form, to the court specifying details of the following —
(a)whether the respondent completed the programme and the respondent’s general attendance at the programme;
(b)an assessment of the extent to which the respondent’s behaviour has changed or is likely to change;
(c)an assessment of whether the respondent is still a safety risk to any family member for whose protection the relevant behaviour management order was made (the victim);
(d)any known views of the victim regarding the matters referred to in paragraphs (a) to (c).
[Section 10V inserted: No. 49 of 2016 s. 14.]
10W.Respondent’s contravention of behaviour management order
(1)This section applies if a respondent contravenes a behaviour management order.
(2)The eligibility assessor or behaviour change programme provider, as the case may be, must —
(a)notify the Commissioner of Police, in writing, of the contravention; and
(b)lodge with the court that made the behaviour management order a certificate, in the prescribed form, setting out the details of the contravention.
(3)In the absence of evidence to the contrary, the certificate referred to in paragraph (b) is proof of the facts contained in it.
[Section 10W inserted: No. 49 of 2016 s. 14.]
10X.Confidentiality of interviews and reports
(1)An eligibility assessor must not disclose any information obtained during the course of conducting an eligibility assessment interview or preparing an eligibility assessment report to any person who is not entitled to receive or have access to the report.
Penalty for this subsection: a fine of $1 000.
(2)A person who receives or otherwise has access to all or part of an eligibility assessment report, or a copy of the report, must not disclose any information contained in the report to any person who is not entitled to receive or have access to the report.
Penalty for this subsection: a fine of $1 000.
(3)A behaviour change programme provider must not disclose any information in a report under section 10V to any person who is not entitled to receive or have access to the report.
Penalty for this subsection: a fine of $1 000.
(4)A person who receives or otherwise has access to all or part of a report under section 10V, or a copy of the report, must not disclose any information contained in the report to any person who is not entitled to receive or have access to the report.
Penalty for this subsection: a fine of $1 000.
(5)This section does not apply to the following disclosures —
(a)a disclosure by, or authorised in writing by, the respondent who is the subject of the eligibility assessment report;
(b)a disclosure to a legal practitioner in connection with the giving of legal advice or the provision of representation in a proceeding under this Act;
(c)a disclosure that is authorised by a court as necessary for the purposes of this Part or proceedings for a contravention of an order under this Part (including any offence constituted by such a contravention);
(d)a disclosure that is required, authorised or permitted (whether expressly or impliedly) by or under a law or by a court;
(e)a disclosure that does not identify the respondent or from which the respondent’s identity cannot reasonably be ascertained;
(f)a disclosure of a kind prescribed in the regulations.
[Section 10X inserted: No. 49 of 2016 s. 14.]
10Y.Confidentiality of behaviour change programme
(1)A behaviour change programme provider must not disclose any information obtained during the course of providing the behaviour change programme to any person who is not entitled to the information.
Penalty for this subsection: a fine of $1 000.
(2)Subsection (1) does not apply to the following disclosures —
(a)a disclosure by, or authorised in writing by, the respondent to whom the behaviour change programme is provided;
(b)a disclosure to a legal practitioner in connection with the giving of legal advice or the provision of representation in a proceeding under this Act;
(c)a disclosure that is authorised by a court as necessary for the purposes of this Part or of a proceeding;
(d)a disclosure that is required, authorised or permitted (whether expressly or impliedly) by or under a law or by a court;
(e)a disclosure that does not identify the respondent or from which the respondent’s identity cannot reasonably be ascertained;
(f)a disclosure of a kind prescribed in the regulations.
[Section 10Y inserted: No. 49 of 2016 s. 14.]
The Minister may delegate to an officer of the department of the Public Service principally assisting the Minister in the administration of this Act all or any of the functions that the Minister has under this Part, other than this power of delegation.
[Section 10Z inserted: No. 49 of 2016 s. 14.]
Part 2 — Violence restraining order
[Division heading deleted: No. 49 of 2016 s. 15.]
11.VRO to specify names of person bound, and person protected, by order
A VRO is to specify —
(a)the name of the person for whose benefit the order is made; and
(b)the name of the person on whose lawful activities and behaviour restraints are imposed by the order.
[Section 11 inserted: No. 38 of 2004 s. 11; amended: No. 49 of 2016 s. 16.]
A court may make a VRO if it is satisfied that —
(a)the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit personal violence against the person seeking to be protected,
and that making a VRO is appropriate in the circumstances.
[Section 11A inserted: No. 38 of 2004 s. 11; amended: No. 49 of 2016 s. 17.]
[11B.Deleted: No. 49 of 2016 s. 18.]
12.Matters to be considered by court generally
(1)When considering whether to make a VRO and the terms of the order a court is to have regard to the following —
(a)the need to ensure that the person seeking to be protected is protected from personal violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them;
(c)the need to ensure the wellbeing of children by protecting them from personal violence, behaviour referred to in paragraph (b) or otherwise being exposed to personal violence;
(d)the accommodation needs of the respondent and the person seeking to be protected;
(da)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not;
(e)hardship that may be caused to the respondent if the order is made;
[(f)deleted]
(g)other current legal proceedings involving the respondent or the person seeking to be protected;
(h)any criminal convictions of the respondent;
(i)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
(j)other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
(3)In having regard to the matters set out in subsection (1)(da), a past history of applications under this Act is not to be regarded in itself as sufficient to give rise to any presumption as to the merits of the application.
(4)The Commissioner of Police, is, where practicable, to provide to a court any information in the possession of the Police Force of Western Australia referred to in subsection (1)(h) or (i) that is relevant to a matter before the court.
(5)The information is to be provided in the form of a certificate signed by —
(a)a police officer of or above the rank of sergeant; or
(b)a person —
(i)employed or engaged in the department of the Public Service principally assisting the Minister in the administration of the Police Act 1892; and
(ii)approved by the Commissioner of Police for the purposes of this subsection.
(6)The certificate is prima facie evidence of the matters specified in it, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was a police officer of or above the rank of sergeant or a person referred to in subsection (5)(b), as the case requires.
(7)In addition to subsections (3) to (6), the court may have regard to any of its own records for the purposes of subsection (1).
(8)Records referred to in subsection (7) are taken to be proof of their contents in the absence of evidence to the contrary.
[Section 12 amended: No. 38 of 2004 s. 12, 54, 55, 56 and 57(5); No. 32 of 2011 s. 4; No. 49 of 2016 s. 19.]
12A.VROs not for persons in family relationship
A court is not to make a VRO unless it is satisfied that the person seeking to be protected by the order and the person bound by the order are not in a family relationship with each other.
[Section 12A inserted: No. 49 of 2016 s. 20.]
(1)In making a VRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent —
(a)committing an personal violence against the person seeking to be protected; or
(aa)if the person seeking to be protected by the order is a child, exposing a child to an personal violence committed by the respondent; or
(b)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them.
(2)Without limiting the restraints that may be imposed, a court may restrain the respondent from doing all or any of the following —
(a)being on or near premises where the person seeking to be protected lives or works;
(b)being on or near specified premises or in a specified locality or place;
(c)approaching within a specified distance of the person seeking to be protected;
(ca)stalking the person seeking to be protected;
(d)communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;
(e)preventing the person seeking to be protected from obtaining and using personal property reasonably needed by the person seeking to be protected, even if the respondent is the owner of, or has a right to be in possession of, the property;
(f)causing or allowing another person to engage in conduct of a type referred to in paragraphs (a) to (e).
(3)A restraint may be imposed on the respondent on such terms as the court considers appropriate.
(4)A VRO may restrain the respondent from entering or remaining in a place, or restrict the respondent’s access to a place, even if the respondent has a legal or equitable right to be at the place.
(5)If a VRO imposes a restraint referred to in subsection (4) or for some other reason the court is satisfied that it is necessary to do so, the court is to ensure that the order makes provision for the person seeking to be protected or the respondent to recover personal property, and other property of a kind prescribed in the regulations, from a place specified in the order —
(a)in the manner set out by the court in the order; or
(b)in accordance with the procedures set out in the regulations.
(6)A VRO may inform the respondent that certain behaviour and activities are unlawful.
[Section 13 amended: No. 38 of 2004 s. 13, 54 and 56; No. 32 of 2011 s. 5; No. 49 of 2016 s. 21.]
Part 2A — Provisions for FVRO and VRO
[Heading inserted: No. 49 of 2016 s. 22.]
Division 1 — Orders relating to firearms
[Heading inserted: No. 49 of 2016 s. 22.]
(1)Subject to subsection (5), every FVRO or VRO includes a restraint prohibiting the person who is bound by the order from —
(a)being in possession of a firearm or firearms licence; and
(b)obtaining a firearms licence.
(2)A person who is bound by an FVRO or VRO must give up possession, to a person and in a manner prescribed in the regulations, of all firearms and firearms licences held by the person.
(3)A firearm or firearms licence given up under subsection (2) is to be dealt with in a manner prescribed in the regulations.
(4)If a person who is bound by an FVRO or VRO —
(a)was lawfully in possession of a firearm or firearms licence before the order was made; and
(b)gives up possession of the firearm or firearms licence under subsection (2),
the person does not breach the order by reason only of being in possession of the firearm or firearms licence for the period necessary to comply with subsection (2).
(5)When making an FVRO or VRO a court may permit the respondent to have possession of a firearm, and, if necessary, a firearms licence relating to it, on such conditions as the court thinks fit, if the court is satisfied that —
(a)the respondent cannot carry on the respondent’s usual occupation unless the respondent is permitted to have possession of a firearm; and
(b)the behaviour in relation to which the order was sought did not involve the use, or threatened use, of a firearm; and
(c)the safety of any person, or their perception of their safety, is not likely to be adversely affected by the respondent’s possession of a firearm.
(6)If, under subsection (5), a court permits a respondent to have possession of a firearm, the court must make that possession subject to such conditions (in addition to any conditions imposed under that subsection) as the applicant or person seeking to be protected requests unless the court considers the requested conditions to be unreasonable.
(7)When making an FVRO or VRO a court may shorten the period prescribed in the regulations within which the respondent must give up possession of firearms and firearms licences.
[Section 14 amended: No. 38 of 2004 s. 55; No. 49 of 2016 s. 23.]
Division 1A — Duration of orders
[Heading inserted: No. 49 of 2016 s. 24.]
[15.Deleted: No. 38 of 2004 s. 43(2).]
16.Duration of FVRO or VRO generally
(1)Subject to subsection (2), an FVRO or VRO comes into force when it is served on the person who is bound by the order, or if a later time is specified in the order, at that time.
(2)If a telephone order or an order made under section 29(1)(a) is specified to have a duration of 72 hours or less and is not served on the respondent within 24 hours of the order being made, the order lapses.
(3A)Any other interim order, or a final order, lapses if it is not served on the respondent within 2 years, or any shorter period specified in the order, of the order being made.
(3)Subject to subsection (2) and section 24(3)(b), if a telephone order or an order made under section 29(1)(a) is specified to have a duration of 72 hours or less, the order remains in force for the period specified in it.
(4)Subject to section 24(3)(b), an interim order remains in force until one of the following occurs —
(a)a final order in respect of the matter comes into force; or
(b)a final order hearing in respect of the matter is concluded without a final order being made; or
(c)the interim order is cancelled; or
(d)in the case of a telephone order, 3 months elapse from the time the order came into force.
[Section 16 amended: No. 38 of 2004 s. 14; No. 32 of 2011 s. 6; No. 49 of 2016 s. 25; No. 13 of 2020 s. 33.]
(1)In this section —
prisoner means a person committed to prison for punishment, or on remand, or for trial, safe custody, or otherwise.
(2)Unless varied or cancelled under Part 5, a final order that is an FVRO made against a respondent who is not a prisoner remains in force for —
(a)in the case of an order made at a final order hearing or under section 10H —
(i)the period (of whatever duration) specified in the order from the date on which the final order came into force; or
(ii)if no period is specified, 2 years from the date on which the final order came into force;
and
(b)in the case of a telephone order which became a final order under section 32 — 3 months from when the telephone order came into force or such shorter period as is specified in that order; and
(c)in the case of any other interim order which becomes a final order under section 32 —
(i)the period (of whatever duration) specified in it from the date on which the interim order came into force; or
(ii)if no period is specified, 2 years from the date on which the interim order came into force.
(3)Unless varied or cancelled under Part 5, a final order that is an FVRO made against a respondent who is a prisoner remains in force from the date on which the final order comes into force for a period of —
(a)in the case of an order made at a final order hearing or under section 10H, or any interim order which becomes a final order under section 32 — 2 years, or such longer period as is specified in that order, from when the respondent is released from prison; and
(b)in the case of a telephone order which became a final order under section 32 — 3 months, or such shorter period as is specified in that order, from when the respondent is released from prison.
(4)For the purposes of subsection (3), the date on which the final order comes into force may be a date on which the respondent is in prison.
(5)In specifying a period for which an FVRO remains in force, the court must have regard to the following —
(a)that the safety of the person protected is paramount;
(b)any assessment by the applicant or person protected of the risk of family violence being committed by the respondent.
(6)In specifying a period for which an FVRO remains in force, the court may also take into account any matters raised by the respondent that are relevant to the duration of the order.
(7)Nothing in this section affects the operation of section 50A.
[Section 16A inserted: No. 49 of 2016 s. 26.]
Unless varied or cancelled under Part 5, a final order that is a VRO remains in force for —
(a)in the case of an order made at a final order hearing —
(i)the period (of whatever duration) specified in the order from the date on which the final order came into force; or
(ii)if no period is specified, 2 years from the date on which the final order came into force;
and
(b)in the case of a telephone order which became a final order under section 32 — 3 months from when the telephone order came into force or such shorter period as is specified in that order; and
(c)in the case of any other interim order which becomes a final order under section 32 —
(i)the period (of whatever duration) specified in it from the date on which the interim order came into force; or
(ii)if no period is specified, 2 years from the date on which the interim order came into force.
[Section 16B inserted: No. 49 of 2016 s. 26.]
Division 2 — Telephone applications
(1)The Chief Magistrate of the Magistrates Court is to —
(a)authorise such magistrates as he or she thinks fit to hear telephone applications; and
(b)ensure that, as far as practicable, there is at least one such authorised magistrate available at all times.
[(2)deleted]
[Section 17 amended: No. 59 of 2004 s. 124.]
(1)An application for an FVRO or VRO may be made under this Division by —
(a)an authorised person on behalf of the person seeking to be protected; or
(b)the person seeking to be protected if he or she is introduced to the authorised magistrate by an authorised person.
(2)An application for an FVRO or VRO may also be made under this Division —
(a)if the person seeking to be protected is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, by the guardian on behalf of the person,
if the parent, child welfare officer or guardian is introduced to the authorised magistrate by an authorised person.
(3)An authorised person is not to make an application, or introduce a person to make an application, under subsection (1) or (2) unless the authorised person reasonably believes that the case meets the criteria set out in section 20(1)(a) or (b).
[Section 18 inserted: No. 22 of 2000 s. 6; amended: No. 38 of 2004 s. 18(4) and 55; No. 49 of 2016 s. 27.]
19.How to make telephone application
An application under this Division for an FVRO or VRO —
(a)is to be made to an authorised magistrate; and
(b)may be made by telephone, fax, radio, video conference, electronic mail or another similar method, or any combination of such methods; and
(c)need not be in a particular form.
[Section 19 amended: No. 49 of 2016 s. 28.]
20.When telephone application may be heard
(1)An authorised magistrate may hear a telephone application if the authorised magistrate is satisfied that —
(a)it would not be practical for an application for an FVRO or VRO to be made in person because of —
(i)the time when, or the location at which, the behaviour complained of occurred, is occurring or is likely to occur; or
(ii)the urgency with which the order is required;
or
(b)there is some other factor that justifies making an FVRO or VRO as a matter of urgency and without requiring the applicant to appear in person before a court.
(2)If an authorised magistrate is not satisfied of those matters, the authorised magistrate is to dismiss the application.
(3)The dismissal of a telephone application under subsection (2), or the failure by a police officer to make a police order, does not prevent an application for an FVRO or VRO being made in person in relation to the same facts.
[Section 20 amended: No. 38 of 2004 s. 18(5); No. 49 of 2016 s. 29.]
21.How hearing to be conducted
(1)The hearing of a telephone application may be conducted by telephone, fax, radio, video conference, electronic mail or another similar method, or any combination of such methods, as the authorised magistrate considers appropriate.
(2)Subject to subsection (3)(b), the hearing of a telephone application is to be conducted in the absence of the respondent.
(3)An authorised magistrate hearing a telephone application may communicate with —
(a)the applicant; and
(b)if the authorised magistrate considers it necessary to do so, and it will not unreasonably delay the hearing, the respondent and any other person.
(4)An authorised magistrate to whom a telephone application is made is to make a written record of —
(a)the name and address of the applicant, the respondent and, if the applicant is making the application on behalf of another person, the other person; and
(b)whether the authorised magistrate is satisfied the criteria set out in section 20(1)(a) or (b) have been met and the reasons for that decision; and
(c)if the authorised magistrate is satisfied those criteria have been met, the grounds for the application; and
(d)the terms of any order made under section 23(1), including the day and time the order was made.
[Section 21 amended: No. 38 of 2004 s. 18(6).]
[22.Deleted: No. 38 of 2004 s. 43(3).]
23.Orders at telephone hearing
(1)An authorised magistrate hearing a telephone application is to —
(a)make a telephone order; or
(b)dismiss the application; or
(c)adjourn the matter to a mention hearing.
(2)If the authorised magistrate adjourns the matter under subsection (1)(c) the registrar is to fix a hearing and summons the respondent to the hearing.
(3)If the duration of a telephone order is more than 72 hours the order is an interim order and Division 4 applies.
[Section 23 amended: No. 59 of 2004 s. 123.]
24.Telephone order to be prepared and served
(1)If an authorised magistrate makes a telephone order the authorised person who made the application or introduced the applicant is to prepare and serve the order.
(2)On receipt of the court copy of the order, the authorised magistrate is to check the order and, if it is correct, sign it and cause the signed copy to be kept on the court’s records.
(3)If there is a discrepancy between the order made by the authorised magistrate and the written order prepared by the authorised person —
(a)as soon as practicable after becoming aware of the discrepancy the registrar is to prepare a new telephone order correcting the discrepancy and serve that order; and
(b)the original order (as prepared by the authorised person) is cancelled with effect from the time when the order prepared under paragraph (a) is served; and
(c)the telephone order served under paragraph (a) remains in force for the period for which the original order would have remained in force if it had not been cancelled.
(4)Section 16(2) does not apply to a telephone order served under subsection (3)(a).
[Section 24 amended: No. 59 of 2004 s. 123.]
Division 3 — Applications in person to a court
[Heading amended: No. 38 of 2004 s. 18(7).]
(1)An application for an FVRO may be made by —
(a)the person seeking to be protected, if the person is 16 years of age or older; or
(b)a police officer on behalf of the person seeking to be protected, regardless of the age of the person.
(2)An application for an FVRO may also be made —
(a)if the person seeking to be protected is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, by the guardian on behalf of the person; or
(c)if the regulations so provide, by a person acting on behalf of another person in circumstances prescribed by the regulations for the purposes of this paragraph.
(2A)In connection with the operation of subsections (1) and (2) —
(a)an application by a police officer under subsection (1)(b) is taken to have been made in the name of the Commissioner of Police; and
(b)an application by a child welfare officer under subsection (2)(a) will be taken to have been made in the name of the CEO (child welfare); and
(c)an application by a guardian under subsection (2)(b) will be taken to have been made in the name of the Public Advocate; and
(d)if the regulations so provide, an application by a person under subsection (2)(c) will, in circumstances prescribed by the regulations, be taken to have been made in the name of an officer or authority prescribed by the regulations.
(3)An application for an FVRO is to be made in accordance with the rules of court (using, if the rules of court so require, the prescribed form) to —
(a)if the respondent is a child, the Children’s Court; or
(b)if the respondent is not a child and the person seeking to be protected is a child, the Children’s Court or the Magistrates Court; or
(c)otherwise, the Magistrates Court.
[Section 24A inserted: No. 49 of 2016 s. 30; amended: No. 13 of 2020 s. 34.]
(1)An application for a VRO may be made by —
(a)the person seeking to be protected; or
(b)a police officer on behalf of that person.
(2)An application for a VRO may also be made —
(a)if the person seeking to be protected is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, by the guardian on behalf of the person.
(3)An application for a VRO is to be made in accordance with the rules of court (using, if the rules of court so require, the prescribed form) to —
(a)if the respondent is a child, the Children’s Court; or
(b)if the respondent is not a child and the person seeking to be protected is a child, the Children’s Court or the Magistrates Court; or
(c)otherwise, the Magistrates Court.
[Section 25 inserted: No. 22 of 2000 s. 7; amended: No. 38 of 2004 s. 55; No. 59 of 2004 s. 124; No. 32 of 2011 s. 7; No. 14 of 2013 s. 4; No. 49 of 2016 s. 31; No. 13 of 2020 s. 35.]
26.Applicant to choose whether to have hearing in absence of respondent
(1)In an application under section 24A or 25 the applicant must indicate whether the applicant wishes to —
(a)have the first hearing of the application held in the absence of the respondent; or
(b)proceed directly to a defended hearing.
(2)If the applicant wishes to have the first hearing held in the absence of the respondent, a hearing for that purpose must be fixed in accordance with the rules of court.
(3)If the applicant wishes to proceed directly to a defended hearing, a hearing must be fixed, and a summons served on the respondent, in accordance with the rules of court.
[Section 26 amended: No. 59 of 2004 s. 123; No. 49 of 2016 s. 32; No. 13 of 2020 s. 36.]
27.Attendance at hearing in absence of respondent
(1)A hearing fixed under section 26(2) is to be held in the absence of the respondent.
(2)If an applicant does not attend a hearing fixed under section 26(2) and has not filed an affidavit under section 28, the court —
(a)if it is satisfied the applicant was notified of the hearing, is to dismiss the application; or
(b)otherwise, is to adjourn the hearing.
(3)If an applicant does not attend a hearing fixed under section 26(2) but, before the time fixed for the hearing, has filed an affidavit under section 28, the court is to hear the matter in the absence of the applicant.
(4)A hearing fixed under section 26(2) is to be in closed court.
(4a)Despite subsection (4) —
(a)the person seeking to be protected is entitled to have one or more persons near him or her to provide support; and
(b)the court may permit any person who is not a party to the proceedings to be in the court.
(5)A person to provide support is to be approved by the court and is not to be a person who is a witness in, or a party to, the proceedings.
[Section 27 amended: No. 38 of 2004 s. 15; No. 5 of 2008 s. 93.]
(1)At a hearing fixed under section 26(2) the applicant may provide evidence by affidavit in support of the application and the court must accept such affidavit in support of the matters alleged in the application and may determine the application on that evidence.
(2)The court may accept a faxed copy of an affidavit if it considers it appropriate.
[Section 28 amended: No. 38 of 2004 s. 16.]
29.Order at hearing in absence of respondent
(1)Subject to section 27, at a hearing fixed under section 26(2) the court may —
(a)make an FVRO or VRO; or
(b)dismiss the application; or
(c)adjourn the matter to a mention hearing; or
(d)at the request of the applicant, discontinue the application.
(2)If the court adjourns the matter under subsection (1)(c) the registrar is to fix a hearing and summons the respondent to the hearing.
(3)If the duration of an FVRO or VRO made under subsection (1)(a) is more than 72 hours the order is an interim order and Division 4 applies.
[Section 29 amended: No. 38 of 2004 s. 17; No. 59 of 2004 s. 123; No. 49 of 2016 s. 33.]
30.Order to be prepared and served
The registrar is to prepare and serve an order made under section 29(1)(a).
[Section 30 amended: No. 59 of 2004 s. 123.]
Division 3A — Police officers may make police orders where family violence
[Heading inserted: No. 38 of 2004 s. 18(1); amended: No. 49 of 2016 s. 34.]
30A.When police order may be made
(1)A police officer may make a police order in accordance with this Division if the officer reasonably believes that the case meets the criteria set out in section 20(1)(a) or (b) as if the order were to be an FVRO and —
(a)if the officer reasonably believes that —
(i)a person has committed family violence and is likely again to commit that violence; or
(ii)a child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to that violence;
or
(b)if the officer has reasonable grounds to apprehend, or reasonably believes that another person has reasonable grounds to apprehend, that —
(i)a person will have committed against the person family violence; or
(ii)a child will be exposed to family violence committed by or against a person with whom the child is in a family relationship,
and that making a police order is necessary to ensure the safety of a person.
(2)A police officer may make a police order whether or not an application for an order has been made.
(3)A police officer must not make a police order if a telephone application has been dismissed under section 23(1)(b) in relation to the same facts.
[Section 30A inserted: No. 38 of 2004 s. 18(1); amended: No. 49 of 2016 s. 35; No. 4 of 2019 s. 12.]
30B.Matters to be considered by police officer generally
In considering whether to make a police order, and the terms of a police order, a police officer is to have regard to the following —
(a)the need to ensure that a person is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them;
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being exposed to family violence;
[(d)deleted]
(e)the accommodation needs of the persons involved;
(f)hardship that may be caused if the order is made;
(g)any similar behaviour by any person involved, whether in relation to the same person or otherwise;
(h)any other matter the police officer considers relevant.
[Section 30B inserted: No. 38 of 2004 s. 18(1); amended: No. 38 of 2004 s. 57(5); No. 49 of 2016 s. 36.]
30C.Restraints that may be imposed
(1)In making a police order a police officer may impose such restraints on the lawful activities and behaviour of a person as the officer considers appropriate to prevent a person —
(a)committing family violence; or
(b)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
(2)Without limiting the restraints that may be imposed, a police officer may restrain a person from doing all or any of the following —
(a)being on or near premises where a person lives or works;
(b)approaching within a specified distance of another person;
(c)causing or allowing another person to engage in conduct of a type referred to in paragraph (a) or (b).
(3)A restraint may be imposed on a person on such terms as the police officer considers appropriate.
(4)A police order may restrain a person from entering or remaining in a place, or restrict a person’s access to a place, even if the person has a legal or equitable right to be at the place.
(5)A police officer making a police order is to ensure that the order made is as least restrictive of the personal rights and liberties of the person to be bound by the order as possible while still ensuring that the person for whose benefit the order is made is protected from acts of abuse.
[Section 30C inserted: No. 38 of 2004 s. 18(1); amended: No. 49 of 2016 s. 37.]
30D.Police orders against children
(1)A police order cannot impose restraints on a child unless the child is in a family relationship with the person for whose benefit the order is made.
(2)A police officer must not make a police order against a child that might affect the care and wellbeing of the child unless the police officer is satisfied that appropriate arrangements have been made for the care and wellbeing of the child.
[Section 30D inserted: No. 32 of 2011 s. 8; No. 49 of 2016 s. 38.]
30E.Police order to be served and explained
(1)Any police officer may serve a police order.
(2)A police order is to specify —
(a)the name of the person or persons for whose benefit the order is made; and
(b)the name of the person on whose lawful activities and behaviour restraints are imposed by the order.
(3)At the time a police order is made or served, a police officer is to explain to the person who is bound by the order, and the person for whose benefit the order is made —
(a)the purpose, duration, terms and effects of the order; and
(b)the consequences that may follow if the person who is bound by the order contravenes the order; and
(c)that counselling and support service may be of assistance, and where appropriate, the police officer is to refer the person to specific services.
(4)If a person to whom an explanation is to be given under subsection (3) does not readily understand English, or the police officer is not satisfied that the person understood the explanation, the officer is, as far as practicable, to arrange for someone else who is 16 years of age or older to give the explanation to the person in a way that the person can understand.
(5)A police order is not invalid merely because —
(a)a police officer did not give the explanation referred to in subsection (3) or arrange for someone else to give the explanation; or
(b)a person whom the police officer arranged to give the explanation did not give the explanation.
[Section 30E inserted: No. 38 of 2004 s. 18(1); amended: No. 5 of 2008 s. 94; No. 49 of 2016 s. 39.]
(1)A police order —
(a)remains in force for 72 hours (or any shorter period specified in the order in accordance with subsection (2)) after it has been served on the person to be bound by it; and
(b)lapses if it is not served on the person to be bound by it within 24 hours of the order being made.
(2)A period shorter than 72 hours may be specified in the police order if, in the opinion of the police officer who makes the order, that shorter period would be sufficient for an application to be made to a court under Division 3.
[Section 30F inserted: No. 32 of 2011 s. 9.]
[30G.Deleted: No. 32 of 2011 s. 10.]
30H.Order not to be renewed by police officer
The duration of a police order cannot be extended or renewed and another police order cannot be made in relation to the same facts.
[Section 30H inserted: No. 38 of 2004 s. 18(1).]
(1)The Minister is to carry out a review of the operation and effectiveness of this Division as soon as is practicable after the expiration of 24 months from the commencement of section 18 of the Acts Amendment (Family and Domestic Violence) Act 2004 and in the course of that review the Minister is to consider and have regard to —
(a)the effectiveness of this Division; and
(b)the need for the retention of this Division; and
(c)any other matters that appear to the Minister to be relevant to the operation and effectiveness of this Division.
(2)Without limiting subsection (1), in carrying out a review under that subsection, the Minister is to consult with and have regard to the views of the Commissioner of Police.
(3)The Minister is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to cause it to be laid before each House of Parliament.
[Section 30I inserted: No. 38 of 2004 s. 18(1).]
Division 4 — Procedure when interim order made
In this Division —
respondent, in respect of an interim order or final order, means the person bound by the order.
[Section 31A inserted: No. 32 of 2011 s. 11.]
31.21 days for respondent to object
Within 21 days of being served with an interim order a respondent must complete the respondent’s endorsement copy of the order in accordance with the instructions on it, and return it to the registrar.
[Section 31 amended: No. 59 of 2004 s. 123.]
32.Respondent does not object to final order being made
(1)If a respondent —
(a)returns the respondent’s endorsement copy of an interim order in accordance with section 31; and
(b)indicates on it that the respondent does not object to the interim order becoming final,
the interim order becomes a final order with the same terms as the interim order.
(2)If a respondent does not return the respondent’s endorsement copy of an interim order in accordance with section 31, the interim order becomes a final order with the same terms as the interim order.
(3)A final order under this section comes into force —
(a)in the case of an order under subsection (1), on the day on which the registrar receives the returned copy of the order; and
(b)in the case of an order under subsection (2), at the end of the 21 day period referred to in section 31.
(4)The registrar is to notify the respondent, the applicant and the Commissioner of Police when an order becomes a final order under this section.
(5)Where an interim order (the earlier order) becomes a final order under subsection (2), the respondent may within 21 days of being notified under subsection (4), or such further period as the court may allow at a hearing fixed under subsection (6), apply to the court, in the prescribed form setting out the grounds of the application, to have that final order set aside.
(6)On receiving an application under subsection (5) the registrar is to fix a hearing, to be held in the absence of the other party to the proceedings, at which, subject to subsection (7), the court —
(a)where the application was made out of time, is to grant leave for the person to continue the application out of time if satisfied that there was a reasonable excuse for not commencing the application within the time allowed; and
(b)after taking into account the grounds of the application, is to —
(i)adjourn the hearing of the matter to allow the other party to oppose the application if the court is satisfied that the respondent may have had a reasonable cause not to return the respondent’s endorsement copy of the earlier order in accordance with section 31; or
(ii)dismiss the application.
(7)If the respondent does not attend a hearing fixed under subsection (6), the court, if it is satisfied that the respondent was notified of the hearing, is to dismiss the application.
(8)If the court adjourns the hearing of the matter under subsection (6)(b)(i) the registrar is to fix a hearing and summons the other party to the hearing.
(9)At a hearing fixed under subsection (8), where the other party is present, or if the other party is not present the court is satisfied the other party was served with the summons, the court is to hear the matter and —
(a)if satisfied that the respondent had reasonable cause not to return the respondent’s endorsement copy of the earlier order in accordance with section 31, is to set aside the final order; or
(b)is to dismiss the application.
(10)Where, under subsection (9)(a), the court sets aside the final order —
(a)the court is to make an interim order in the same terms as the earlier order, unless any new ground or matter is raised at the hearing fixed under subsection (6) or (8); and
(b)section 33 applies as if the respondent had —
(i)returned the respondent’s endorsement copy of the interim order in accordance with section 31; and
(ii)indicated on it that the respondent objected to the interim order becoming final.
[Section 32 amended: No. 59 of 2004 s. 123; No. 32 of 2011 s. 12.]
33.Respondent objects to final order being made
(1)If a respondent —
(a)returns the respondent’s endorsement copy of an interim order in accordance with section 31; and
(b)indicates on it that the respondent objects to the interim order becoming final,
the registrar is to fix a hearing and notify all parties of the hearing.
(2)If the interim order includes a restraint on the respondent that prohibits or restricts the respondent from —
(a)being on premises where the respondent usually resides; or
(b)having contact with the respondent’s children; or
(c)being on premises where the respondent usually works, or otherwise carrying on the respondent’s usual occupation; or
(d)being in possession of a firearm that the respondent reasonably needs in order to carry on the respondent’s usual occupation,
the registrar is to ensure that the date fixed under subsection (1) for the final order hearing is as soon as practicable after the respondent returns the respondent’s endorsement copy of the interim order.
[Section 33 amended: No. 59 of 2004 s. 123.]
Part 3 — Misconduct restraining order
34.Grounds for misconduct restraining order
A court may make an MRO if it is satisfied that —
(a)unless restrained, the respondent is likely to —
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; or
(ii)cause damage to property owned by, or in the possession of, the person seeking to be protected; or
(iii)behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b)granting an MRO is appropriate in the circumstances.
[Section 34 amended: No. 38 of 2004 s. 54 and 56; No. 49 of 2016 s. 40.]
35.Matters to be considered by court generally
(1)When considering whether to make an MRO for reasons referred to in section 34(a)(i) or (ii) and the terms of the order a court is to have regard to —
(a)the need to ensure that —
(i)the person seeking to be protected is protected from intimidatory or offensive behaviour; and
(ii)property owned by, or in the possession of, the person seeking to be protected is protected from damage;
and
(b)the wellbeing of children who are likely to be affected by the respondent’s behaviour or the operation of the proposed order; and
(c)the accommodation needs of the respondent and the person seeking to be protected; and
(d)hardship that may be caused to the respondent if the order is made; and
[(e)deleted]
(f)other current legal proceedings involving the respondent or the person seeking to be protected; and
(g)any criminal convictions of the respondent; and
(h)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; and
(i)other matters the court considers relevant.
(2)When considering whether to make an MRO for reasons referred to in section 34(a)(iii) and the terms of the order a court is to have regard to —
(a)the need to ensure that the public is protected from breaches of the peace; and
(b)the wellbeing of children who are likely to be affected by the respondent’s behaviour or the operation of the proposed order; and
(c)the accommodation needs of the respondent; and
(d)hardship that may be caused to the respondent if the order is made; and
[(e)deleted]
(f)any criminal convictions of the respondent; and
(g)other current legal proceedings involving the respondent; and
(h)other matters the court considers relevant.
(3)A court is to have regard to the matters set out in subsection (1)(a) and (b) or (2)(a) and (b) as being of primary importance.
[Section 35 amended: No. 38 of 2004 s. 19, 54, 55, 56 and 57(5); No. 49 of 2016 s. 41.]
35A.MROs not for persons in family relationship
A court is not to make an MRO unless it is satisfied that the person seeking to be protected by the order and the person bound by the order are not in a family relationship with each other.
[Section 35A inserted: No. 38 of 2004 s. 20; amended: No. 49 of 2016 s. 42.]
(1)In making an MRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent —
(a)behaving in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; or
(b)causing damage to property owned by, or in the possession of, the person seeking to be protected; or
(c)behaving in a manner that is, or is likely to lead to, a breach of the peace.
(2)Without limiting the restraints that may be imposed for the purposes of subsection (1)(a) or (b), a court may restrain the respondent from doing all or any of the following —
(a)being on or near premises where the person seeking to be protected lives or works;
(b)being on or near specified premises or in a specified locality or place;
(c)approaching within a specified distance of the person seeking to be protected;
(ca)stalking the person seeking to be protected;
(d)communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;
[(e)deleted]
(f)being in possession of a firearm or firearms licence, or applying for a firearms licence;
(g)causing or allowing another person to engage in conduct of a type referred to in paragraphs (a) to (f).
(3)Without limiting the restraints that may be imposed for the purposes of subsection (1)(c), a court may restrain the respondent from doing all or any of the following —
(a)being on or near specified premises or in a specified locality or place; or
(b)engaging in behaviour of a specified kind, either at all or in a specified place, at a specified time or in a specified manner; or
(c)being in possession of a firearm or firearms licence, or applying for a firearms licence.
(4)A restraint may be imposed on the respondent on such terms as the court considers appropriate.
(5)An MRO may restrain the respondent from entering or remaining in a place, or restrict the respondent’s access to a place, even if the respondent has a legal or equitable right to be at the place.
(6)If an MRO restrains the respondent from being in possession of a firearm or firearms licence, or applying for a firearms licence, sections 14 and 62E apply as if the MRO were a VRO.
[Section 36 amended: No. 38 of 2004 s. 21, 43(4), 54 and 56; No. 49 of 2016 s. 43.]
(1)An MRO comes into force when it is served on the respondent, or if a later time is specified in the order, at that time.
(2)Subject to Part 5, an MRO remains in force for the period specified in the order or, if no period is specified, for one year from when it came into force.
[Section 37 amended: No. 49 of 2016 s. 44.]
(1)An application for an MRO may be made in person by —
(a)the person seeking to be protected; or
(b)a police officer on behalf of that person.
(2)An application for an MRO may also be made —
(a)if the person seeking to be protected is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, by the guardian on behalf of the person.
(3)If there is no particular person seeking to be protected an application for an MRO may be made by a police officer on behalf of the public generally.
(4)An application for an MRO is to be made in the prescribed form to —
(a)if the respondent is a child, the Children’s Court; or
(b)otherwise, the Magistrates Court.
[Section 38 inserted: No. 22 of 2000 s. 8; amended: No. 38 of 2004 s. 55; No. 59 of 2004 s. 124; No. 49 of 2016 s. 45.]
39.Registrar to fix hearing and issue summons
If an applicant makes an application for an MRO the registrar is to fix a hearing and summons the respondent to the hearing.
[Section 39 amended: No. 59 of 2004 s. 123; No. 49 of 2016 s. 46.]
Part 4 — Hearings and evidence
[Heading amended: No. 38 of 2004 s. 22.]
(1)If an applicant does not attend a mention hearing, the court —
(a)if it is satisfied the applicant was notified of the hearing, is to dismiss the application; or
(b)otherwise, is to adjourn the hearing.
(2)If a respondent does not attend a mention hearing and the applicant does attend, the court —
(a)if it is satisfied the respondent was served with the summons requiring the respondent to attend the hearing, is to hear the matter in the absence of the respondent; or
(b)otherwise, is to adjourn the hearing.
(3)When hearing a matter in the absence of the respondent, the court is to —
(a)make a restraining order; or
(b)dismiss the application; or
(c)direct the registrar to fix a hearing and summons the respondent to attend the hearing; or
(d)adjourn the mention hearing.
(4)The registrar is to prepare and serve an order made under subsection (3)(a).
[Section 40 amended: No. 10 of 1998 s. 62(2); No. 59 of 2004 s. 123.]
41.Consent order or final order hearing to be fixed
(1)If, at a mention hearing, the respondent consents to a final order being made in relation to a VRO or MRO, the court may make the order by consent without being satisfied there are grounds for making the order.
(2)If a respondent consents to a final order being made in relation to a VRO or MRO, the consent does not constitute an admission by the respondent of all or any of the matters alleged in the application.
(3)The registrar is to prepare and serve a final order made by consent under subsection (1).
(4)Subject to section 40, at a mention hearing at which a consent order is not made, the court is to direct the registrar to fix a hearing and summons the respondent to attend the hearing.
[Section 41 amended: No. 59 of 2004 s. 123; No. 49 of 2016 s. 47.]
Division 2 — Final order hearings
42.Attendance at final order hearing
(1)If an applicant does not attend a final order hearing, the court —
(a)if it is satisfied the applicant was notified of the hearing, is to dismiss the application; or
(b)otherwise, is to adjourn the hearing.
(2)If a respondent does not attend a final order hearing and the applicant does attend, the court —
(a)if it is satisfied that the respondent was —
(i)in the case of a hearing fixed under section 33, notified of the hearing; or
(ii)in the case of a hearing fixed under section 40(3)(c), 41(4) or 43A(7)(b), served with a summons requiring the respondent to attend the hearing,
is, subject to subsection (3), to hear the matter in the absence of the respondent; or
(b)otherwise, is to adjourn the hearing.
(3)If —
(a)a respondent does not attend a final order hearing; and
(b)the applicant does attend; and
(c)the court is satisfied in accordance with subsection (2)(a); and
(d)an earlier restraining order is in force in respect of the matter,
the court is to make a final order in the same terms as the earlier order unless any new ground or matter is raised by the applicant at the final order hearing.
(4)At a final order hearing —
(a)attended by the applicant but not by the respondent; or
(b)attended by both the applicant and the respondent,
a court is to admit as evidence any record of evidence given (including any affidavit filed) at a prior hearing in relation to the application that is relevant to the application.
(5)A court is not to admit as evidence a record of evidence referred to in subsection (4) unless —
(a)the person who gave the evidence is available to be cross‑examined on that evidence; or
(b)the laws of evidence allow the record to be admitted; or
(c)each party at the hearing consents.
[Section 42 amended: No. 22 of 2000 s. 9; No. 38 of 2004 s. 23 and 25(4); No. 5 of 2008 s. 95.]
(1)Subject to section 42, at a final order hearing a court may make a final order of the type, and with the terms, the court considers appropriate.
(1a)Without limiting subsection (1), at a final order hearing, a court —
(a)may, subject to Part 2, make a final order for a VRO even if the application was for an MRO;
(b)may, subject to Part 3, make a final order for an MRO —
(i)even if the application was for a VRO; and
(ii)even if an interim order is in force.
(2)If, at a final order for a VRO or MRO hearing, the respondent consents to a final order for a VRO or MRO being made, the court may make the order by consent without being satisfied there are grounds for making the order.
(3)If a respondent consents to a final order for a VRO or MRO being made, the consent does not constitute an admission by the respondent of all or any of the matters alleged in the application.
(4)Nothing in this section affects the power of the court to make a conduct agreement order at a final order hearing.
[Section 43 amended: No. 38 of 2004 s. 24; No. 5 of 2008 s. 96; No. 49 of 2016 s. 48.]
43A.Decision under s. 42 in default of appearance may be set aside
(1)In this section —
respondent, in respect of a decision to dismiss an application in default of appearance of the applicant, means the person who was the respondent at the final order hearing at which the decision was dismissed.
(2)Where the court —
(a)has dismissed an application in default of appearance of the applicant under section 42(1)(a), that applicant may, within 21 days of becoming aware that the application was dismissed; or
(b)has made a restraining order under section 42 in default of appearance of the respondent, that respondent may within 21 days of the order being served on the respondent,
or such further period as the court may allow at a hearing fixed under subsection (3), apply to the court, in the prescribed form setting out the grounds of the application, to have that decision set aside.
(3)On receiving an application under subsection (2) the registrar is to fix a hearing, to be held in the absence of the other party to the proceedings, at which, subject to subsection (4), the court —
(a)where the application was made out of time, is to grant leave for the person to continue the application out of time if satisfied that there was a reasonable excuse for not commencing the application within the time allowed; and
(b)after taking into account the grounds of the application, is to —
(i)adjourn the hearing of the matter to allow the other party to oppose the matter if satisfied that the person who made the application may have had a reasonable cause not to attend the hearing at which the application was dismissed, or the restraining order made; or
(ii)dismiss the application.
(4)If the applicant does not attend a hearing fixed under subsection (3), the court, if it is satisfied that the applicant was notified of the hearing, is to dismiss the application.
(5)If the court adjourns the matter under subsection (3)(b)(i) the registrar is to fix a hearing and summons the other party to the hearing.
(6)At a hearing fixed under subsection (5), where the other party is present, or if the other party is not present the court is satisfied the other party was served with the summons, the court is to hear the matter and —
(a)if satisfied that the applicant had reasonable cause not to attend the hearing at which the application was dismissed or the restraining order made, is to set aside the decision made under section 42; or
(b)is to dismiss the application.
(7)Where, under subsection (6)(a), the court sets aside a decision made under section 42 —
(a)if, immediately before the hearing at which the decision under section 42 was made, an earlier order was in force in respect of the matter, the court is to make an interim order in the same terms as the earlier order, unless any new ground or matter is raised at the hearing fixed under subsection (3) or (5); and
(b)the registrar is to fix a hearing as soon as is practicable and summons the respondent to the hearing.
(8)The registrar is to prepare and serve an interim order made under subsection (7)(a).
(9)At a hearing fixed under subsection (7)(b) the court is to re‑hear the matter under section 42.
[Section 43A inserted: No. 38 of 2004 s. 25(1); amended: No. 59 of 2004 s. 123.]
44.Order to be prepared and served
The registrar is to prepare and serve a final order made at a final order hearing.
[Section 44 amended: No. 59 of 2004 s. 123.]
[Heading inserted: No. 38 of 2004 s. 26.]
44A.Rules of evidence not to apply in certain circumstances
(1)At a hearing fixed under section 26(2), a final order hearing for an FVRO or a hearing fixed under section 47 for an FVRO —
(a)a court is not bound by the rules of evidence; and
(b)a court may inform itself on any matter in such manner as it considers appropriate; and
(c)without limiting paragraph (b), evidence of a representation about a matter that is relevant to the application is admissible as evidence, despite the rule against hearsay.
(2)The court may give such weight as it thinks fit to evidence admitted under subsection (1)(c).
(2A)Except as otherwise provided in this Act, at a final order hearing for an FVRO, the court may refuse to admit, or may limit the use to be made of, evidence if —
(a)the court is satisfied it is just and equitable to do so; or
(b)the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing.
(3)In this section —
representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
[Section 44A inserted: No. 38 of 2004 s. 26; amended: No. 49 of 2016 s. 49.]
44B.Access to affidavit evidence
Subject to section 70, at the request of a party to an application, the registrar of the court where the application was made is to provide to the person a copy of any affidavit received in evidence in relation to the application.
[Section 44B inserted: No. 38 of 2004 s. 26; amended: No. 59 of 2004 s. 123.]
44C.Cross‑examination of certain persons
(1)If in any proceedings under this Act a respondent, or a person who is bound by an order —
(a)is not represented; and
(b)wishes to cross‑examine a person with whom the examiner is in a family relationship or an imagined personal relationship,
the court is to order that the examiner —
(c)is not entitled to do so directly; but
(d)may put any question to the person to be examined by stating the question to a judicial officer or a person approved by the court,
and that person is to repeat the question accurately to the person to be examined.
(2)Subsection (1) does not apply —
(a)if —
(i)the person to be examined requests that the order not be made; and
(ii)the court considers it appropriate in all the circumstances for the order not to be made;
or
(b)if the court is of the opinion that it is not just or desirable for such an order to be made.
[Section 44C inserted: No. 38 of 2004 s. 26; amended: No. 49 of 2016 s. 50.]
Part 5 — Variation or cancellation
(1)An application to vary or cancel a restraining order may be made by —
(a)the person protected by the order; or
(b)a police officer on behalf of the person protected by the order; or
(c)the person bound by the order.
(2)An application to vary or cancel a restraining order may also be made —
(a)if the person protected by the order is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person protected by the order is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, by the guardian on behalf of the person.
(3)If the original application for a final order was made by a police officer on behalf of the public generally an application to vary or cancel the order may be made by a police officer on behalf of the public generally.
(4)An application to vary or cancel a restraining order is to be made in the prescribed form to the court that made the order.
(5)The prescribed form is to contain a brief summary of the effect of subsection (6).
(6)If an application is made to vary —
(a)a restraining order that is a final order; or
(b)an MRO,
which includes an application to vary the order by extending the duration of the order, then, despite anything else in this Act, the order is not to expire before the application is determined if the person bound by the order has been served with a summons under section 47.
[Section 45 inserted: No. 22 of 2000 s. 10(1); amended: No. 38 of 2004 s. 27; No. 32 of 2011 s. 13; No. 49 of 2016 s. 51.]
45A.Application by CEO (child welfare)
(1)Where the CEO (child welfare) intervenes in proceedings under section 50D by making an application to vary or cancel an FVRO or VRO, the registrar is to fix a hearing for that purpose and notify the CEO (child welfare) and the parties to the application for the FVRO or VRO of the hearing.
(2)If the CEO (child welfare) has specified on an application referred to in subsection (1) that the application needs to be heard as a matter of urgency then the time fixed for the hearing under subsection (1) is to be as soon as possible.
(3)Sections 54(1) and 56(2) do not apply in respect of an urgent hearing fixed under subsection (2).
[Section 45A inserted: No. 38 of 2004 s. 28; amended: No. 59 of 2004 s. 123; No. 49 of 2016 s. 52.]
(1)If a person who is bound by a restraining order makes an application under section 45(1)(c) the registrar is to fix a hearing at which the court will consider whether to grant leave for the person to continue the application.
(2)The hearing fixed under subsection (1) is to be held in the absence of the person for whose benefit the order was made.
(3)If the person who is bound by the order does not attend a hearing fixed under subsection (1) the court —
(a)if it is satisfied the person was notified of the hearing, is to dismiss the application; or
(b)otherwise, is to adjourn the hearing.
(4)Subject to subsection (3), at a hearing fixed under subsection (1) the court —
(a)is to grant leave for the person to continue the application to vary or cancel the order if it is satisfied that —
(i)there is evidence to support a claim that a person protected by the order has persistently invited or encouraged the applicant to breach the order, or by his or her actions has persistently attempted to cause the applicant to breach the order; or
(ii)there has been a substantial change in the relevant circumstances since the order was made; or
(iii)in respect of an application to vary an interim order, there is evidence to support a claim that the restraints imposed by the order are causing the applicant serious and unnecessary hardship and that it is appropriate that the application is heard as a matter of urgency;
or
(b)otherwise, is to dismiss the application.
[Section 46 amended: No. 22 of 2000 s. 10(2); No. 38 of 2004 s. 29; No. 59 of 2004 s. 123.]
(1)If an application is made under section 45(1)(a) or (b), (2) or (3) the registrar is to fix a hearing for that purpose and summons the person who is bound by the order to the hearing.
(2)If a person who is bound by a restraining order is granted leave under section 46(4)(a) to continue an application the registrar is to fix a hearing for that purpose and summons to the hearing —
(a)if the person protected by the order is a child —
[(i)deleted]
(ii)a parent or guardian of the child on behalf of the child; or
(iii)a child welfare officer on behalf of the child,
as the registrar considers appropriate; or
(b)if the person protected by the order is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, the guardian on behalf of the person; or
(c)otherwise, the person protected by the order.
(3)If a registrar fixes a hearing under subsection (2) in relation to an MRO made for the benefit of the public generally, the registrar is to notify the Commissioner of Police of the hearing and a police officer, nominated by the Commissioner, may attend at the hearing as if the officer were the applicant and had been summonsed under subsection (2).
[Section 47 amended: No. 22 of 2000 s. 10(3) and 11; No. 38 of 2004 s. 30; No. 59 of 2004 s. 123; No. 49 of 2016 s. 53.]
(1)If a person who made an application under section 45 does not attend a hearing fixed under section 47, the court —
(a)if it is satisfied the person was notified of the hearing, is to dismiss the application; or
(b)otherwise, is to adjourn the hearing.
(2)If —
(a)a person summonsed under section 47(1) or 47(2) does not attend; or
(b)where the Commissioner of Police was notified under section 47(3), no police officer nominated under that section attends,
a hearing fixed under that section and the person who made the application does attend, the court —
(c)if it is satisfied the summonsed person was served with the summons, or that the Commissioner of Police was notified of the hearing, is to hear the matter in the absence of the summonsed person or a nominated police officer; or
(d)otherwise, is to adjourn the hearing.
(3)At a hearing referred to in subsection (2) —
(a)attended by the applicant but not by a person summonsed under section 47(1) or 47(2) or a police officer nominated under section 47(3); or
(b)attended by both the applicant and by a person summonsed under section 47(1) or 47(2) or a police officer nominated under section 47(3),
a court is to admit as evidence any record of evidence given (including any affidavit filed) at a prior hearing in relation to the application, or the application for the original restraining order, that is relevant to the application.
(4)A court is not to admit as evidence a record of evidence referred to in subsection (3) unless —
(a)the person who gave the evidence is available to be cross‑examined on that evidence; or
(b)the laws of evidence allow the record to be admitted; or
(c)each party at the hearing consents.
[Section 48 amended: No. 22 of 2000 s. 10(4); No. 38 of 2004 s. 31; No. 5 of 2008 s. 97.]
48A.Ex parte application to cancel order by person protected by order
(1)In an application to cancel a restraining order made under section 45(1)(a) the applicant may indicate that he or she wishes to have the application heard in the absence of the person who is bound by the order.
(2)If the applicant wishes to have the application heard in the absence of the person who is bound by the order, the registrar is to fix a hearing for that purpose.
[Section 48A inserted: No. 38 of 2004 s. 32; amended: No. 59 of 2004 s. 123.]
(1)Subject to section 48, at a hearing fixed under section 47 of an application made under section 45 the court may —
(a)dismiss the application; or
(b)if it decides to vary an interim order or a final order —
(i)cancel the original order and make a replacement order that contains the variations; or
(ii)make an additional interim order or final order, to be read with the original order, that states the variations;
or
(c)if it decides to cancel an interim order or a final order, cancel the order.
(1a)At a hearing fixed under section 48A the court may cancel the original restraining order.
(1b)If a court varies an interim order by cancelling it and making a new one, any objection that the respondent made to the cancelled order applies to the new order and the new order is to be dealt with accordingly.
(2)The registrar is to prepare and serve an order made under subsection (1) or (1a).
(3)If the court cancels a restraining order the registrar —
(a)if the person protected by the order was not present at the hearing, is to notify that person; and
(b)if the person who was bound by the order was not present at the hearing, is to notify that person; and
(c)is to notify the Commissioner of Police; and
(d)if the court is aware that the cancelled order is registered in a court of another State or Territory under a law equivalent to Part 7, is to notify the relevant officer of that court.
(4)The cancellation of an order under subsection (1) has effect —
(a)if another order is made when the original order is cancelled, at the time the new order comes into force; or
(b)otherwise, at the conclusion of the hearing at which the order was cancelled.
(5)The cancellation of an order under subsection (1a) has effect at the conclusion of the hearing at which the order is cancelled.
[Section 49 amended: No. 38 of 2004 s. 33; No. 59 of 2004 s. 123; No. 5 of 2008 s. 98.]
49A.Correcting minor errors in restraining orders
(1)Where a restraining order contains —
(a)a clerical mistake; or
(b)an error arising from an accidental slip or omission; or
(c)a material mistake in the description of any person, thing or matter referred to in the order,
the registrar may correct the order, or the court, on an application by, or on behalf of, the person protected, or the person who is bound, by the order, may make an order correcting the restraining order.
(2)Subsection (1) does not apply if the correction would adversely affect the interests of the person protected, or the person who is bound, by the order.
[Section 49A inserted: No. 38 of 2004 s. 34; amended: No. 59 of 2004 s. 123.]
49B.Matters to be considered by court generally
(1)When considering whether to vary or cancel an FVRO, the court is to have regard to —
(a)the matters referred to in section 10F; and
(b)if the application for the variation or cancellation is made by the person protected, whether or not it is possible that threats have been made against, or some other pressure has been brought to bear on, the person protected.
(2)When considering whether to vary or cancel a VRO, the court is to have regard to the matters referred to in section 12.
[Section 49B inserted: No. 49 of 2016 s. 54.]
[Heading inserted: No. 38 of 2004 s. 35.]
50.No restraining orders against children under 10
No restraining order is to be made against a child who is under 10 years of age.
50A.Restraining order against child not to exceed 6 months
A restraining order that is a final order made against a child is to have a duration of 6 months or less, unless the order is made under section 63A.
[Section 50A inserted: No. 38 of 2004 s. 36.]
50B.Child welfare laws not affected
(1)A court must not make a restraining order under this Act in relation to a child who is under the control or in the care (however described) of a person under a child welfare law unless —
(a)the order is made as a result of the intervention of the CEO (child welfare) under section 50D; or
(b)the order is made in proceedings that have been instigated or continued with the written consent of a person who, under the relevant child welfare law, has responsibility for the control or care (however described) of the child.
(2)Nothing in this Act, and no restraining order made under this Act, affects —
(a)the jurisdiction of a court or the power of an authority, under a child welfare law, to make an order, or to take any other action, by which a child is placed under control or in the care (however described) of a person under a child welfare law; or
(b)any such order made or action taken; or
(c)the operation of a child welfare law in relation to a child.
(3)If it appears to a court that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in subsection (2)(a) in relation to a child, the court may adjourn any proceedings before it that relate to the child.
(4)In this section —
child welfare law has the same meaning as in the Family Court Act 1997.
[Section 50B inserted: No. 38 of 2004 s. 36.]
50C.CEO (child welfare) to be notified before certain FVROs or VROs are made
(1)Before a court makes an FVRO or VRO where —
(a)the respondent is a child who is under 16 years of age; and
(b)the person seeking to be protected by the order is —
(i)a parent or guardian of the child; or
(ii)a person responsible for the day to day care of the child, or with whom the child habitually resides,
the registrar is to notify the CEO (child welfare) that such an order may be made.
(2)If an order referred to in subsection (1) is made the CEO (child welfare) is to cause such inquiries to be made as the CEO (child welfare) considers necessary for the purpose of determining whether action should be taken to safeguard or promote the child’s wellbeing.
[Section 50C inserted: No. 38 of 2004 s. 36; amended: No. 59 of 2004 s. 123; No. 49 of 2016 s. 55.]
50D.Intervention by CEO (child welfare)
(1)In any proceedings under this Act that affect, or may affect, the wellbeing of a child the court hearing the proceedings may request the CEO (child welfare) to intervene in the proceedings and the CEO (child welfare) may intervene in those proceedings on that request.
(2)The CEO (child welfare) may intervene in any proceedings under this Act —
(a)if they involve a child who, in the opinion of the CEO (child welfare), appears to be a child in need of protection as defined in the Children and Community Services Act 2004 section 3; or
(b)if, in the opinion of the CEO (child welfare), the operation of a restraining order has affected, or may affect, the wellbeing of a child.
(3)If the CEO (child welfare) intervenes in proceedings the CEO (child welfare) is to be treated as a party to the proceedings with all the rights, duties and liabilities of a party.
[Section 50D inserted: No. 38 of 2004 s. 36; amended: No. 38 of 2004 s. 57(5); No. 20 of 2013 s. 113.]
51.Responsible adult to attend
In a matter relating to a restraining order where the respondent or person who is bound by an order is a child, section 45 of the Young Offenders Act 1994 applies as if the matter were a proceeding for an offence.
(1)If the Children’s Court hears an application under this Act in the belief that the respondent or person who is bound by an order is a child when in fact the person is not a child —
(a)as soon as it becomes aware the person is not a child, the Children’s Court is to transfer the matter to the Magistrates Court; and
(b)the Children’s Court proceedings are not, for that reason, invalidated; and
(c)an order made by the Children’s Court before it became aware the person was not a child, is as valid and has the same effect as if it had been made by the Magistrates Court to which the matter is transferred.
(2)If the Magistrates Court hears an application under this Act in the belief that the respondent or person who is bound by an order is not a child when in fact the person is a child —
(a)as soon as it becomes aware the person is a child, the Magistrates Court is to transfer the matter to the Children’s Court; and
(b)the Magistrates Court proceedings are not, for that reason, invalidated; and
(c)an order made by the Magistrates Court before it became aware the person was a child, is as valid and has the same effect as if it had been made by the Children’s Court.
(3)If a court transfers a matter to another court under this section, the registrars of each court are to give effect to the transfer.
[Section 52 amended: No. 59 of 2004 s. 124.]
53.Telephone order made against child
If an authorised magistrate hearing a telephone application against a child —
(a)makes a telephone order the duration of which is more than 72 hours; or
(b)adjourns the matter to a mention hearing,
the authorised magistrate, at the same time, is to transfer the matter to the Children’s Court.
53A.Children not to give oral evidence without leave of court, other than in Children’s Court
(1)A child is not to give oral evidence in any proceedings under this Act unless —
(a)a court makes an order allowing the child to give oral evidence; or
(b)the evidence is given in the Children’s Court.
(2)A court is not to make an order under subsection (1)(a) unless the court, having weighed the availability of other evidence and the interests of the child, is satisfied that exceptional circumstances exist which, in the interests of justice, justify the making of the order.
[Section 53A inserted: No. 38 of 2004 s. 37.]
(1)This section applies where —
(a)in accordance with section 53A, a child is giving oral evidence in any proceedings under this Act; and
(b)the necessary facilities and equipment are available.
(2)If this section applies, the child is to give evidence outside the courtroom but within the court precincts, and the evidence is to be transmitted to the courtroom by means of video link.
(3)Where arrangements are made under this section the child’s evidence is to be visually recorded.
(4)In this section —
video link has the same meaning as in section 120 of the Evidence Act 1906.
[Section 53B inserted: No. 38 of 2004 s. 37.]
53C.Child who gives evidence entitled to support
(1)A child giving oral evidence in any proceedings under this Act in accordance with section 53A is entitled to have near to him or her a person, or more than one person, to provide support.
(2)A person to provide support is to be approved by the court and is not to be a person who is a witness in, or a party to, the proceedings.
[Section 53C inserted: No. 38 of 2004 s. 37.]
53D.Cross‑examination of child by unrepresented person
If, in any proceedings under this Act, a person who is not represented wishes to cross‑examine a child who, in accordance with section 53A, has given oral evidence, the examiner —
(a)is not entitled to do so directly; but
(b)may put any question to the child by stating the question to a judicial officer or a person approved by the court,
and that person is to repeat the question accurately to the child.
[Section 53D inserted: No. 38 of 2004 s. 37.]
53E.Admissibility of evidence of representations made by children
(1)Evidence of a representation made by a child about a matter that is relevant to proceedings under this Act is admissible as evidence in those proceedings, despite the rule against hearsay.
(2)The court may give such weight as it thinks fit to evidence admitted under subsection (1).
(3)If a representation made by a child is to be admitted in evidence, evidence of the making and content of the representation is to be given by a person who was present when the child made it.
(4)In this section —
representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
[Section 53E inserted: No. 38 of 2004 s. 37; amended: No. 5 of 2008 s. 99.]
(1)Despite any other provision of this Act, a child is not to be summonsed to the hearing of an application unless —
(a)a court makes an order allowing the child to be summonsed; or
(b)the hearing is to be held in the Children’s Court.
(2)A court is not to make an order under subsection (1)(a) unless the court is satisfied that exceptional circumstances exist which, in the interests of justice, justify summonsing the child.
[Section 53F inserted: No. 38 of 2004 s. 37.]
53G.Arrangements for care and wellbeing of children bound by restraining orders
(1)A court is not to make a restraining order against a child that might affect the care and wellbeing of the child unless the court is satisfied that appropriate arrangements have been made for the care and wellbeing of the child.
(2)If a court makes a restraining order of the kind referred to in subsection (1), the court may require the parties to the proceedings to appear before the court on a regular basis during the period that the order is in force in order to report on those arrangements.
[Section 53G inserted: No. 32 of 2011 s. 14.]
(1)A summons relating to a restraining order is to be served —
(a)personally, at least 7 days before the hearing date; or
(b)by post in accordance with subsection (2), at least 14 days before the hearing date.
(2)A summons served by post is to be sent —
(a)by prepaid registered post; and
(b)to the person to whom it is directed at the person’s last known place of residence or business; and
(c)by the registrar, a police officer or a person authorised by the registrar.
[Section 54 amended: No. 59 of 2004 s. 123.]
55.Service of restraining order
(1)A restraining order is to be served personally unless —
(a)the registrar has authorised oral service under subsection (2); or
(b)subsection (3) applies to the order; or
(c)substituted service is allowed under section 60.
(2)The registrar may authorise oral service of a restraining order if the registrar is satisfied reasonable efforts have been made to serve the order personally.
(3)The following orders may be served by post in accordance with subsection (4) —
(a)a final order under section 32; and
(b)a final order that was preceded by an interim order that is still in force; and
(c)a conduct agreement order or a consent order; and
(d)an order made under section 63 or 63A.
(3a)A restraining order is taken to have been served if the person who is bound by the order is present in court when the order is made.
(4)A restraining order being served by post is to be sent —
(a)by ordinary prepaid post; and
(b)to the person to whom it is directed at the person’s last known place of residence or business; and
(c)by the registrar, a police officer or a person authorised by the registrar.
(5)If a person is serving a restraining order orally that person is to inform the person being served of —
(a)the fact that the restraining order has been made; and
(b)the general nature of the restraints imposed by the order; and
(c)the duration of the order; and
(d)a place where a written copy of the order, and a document containing the explanation to be given under section 8(1), can be obtained.
(5A)If a person to whom information is to be given under subsection (5) does not readily understand English, or the person serving the restraining order is not satisfied that the person understood the information, the person serving the order is, as far as practicable, to arrange for someone else who is 16 years of age or older to give the information to the person in a way that the person can understand.
(6)Oral service may be effected face to face or by telephone, radio, video conference or another similar method.
(7)Oral service of a restraining order does not require the person serving the order to be in possession of a copy of it at the time of service if the terms of the order are communicated to the respondent.
[Section 55 amended: No. 38 of 2004 s. 38(1)‑(3); No. 59 of 2004 s. 123; No. 49 of 2016 s. 56; No. 13 of 2020 s. 37.]
(1)Notification of a matter is to be given in writing to the person to be notified —
(a)personally; or
(b)by sending it by ordinary prepaid post to the person at the person’s last known place of residence or business.
(2)Notification of a hearing —
(a)if it is given personally, is to be given at least 7 days before the hearing date; or
(b)if it is given by post, is to be posted at least 14 days before the hearing date.
(3)A document delivered to a person may be —
(a)given to the person personally; or
(b)sent by ordinary prepaid post to the person at the person’s last known place of residence or business.
57.Copy of document sufficient for service
It is sufficient to constitute personal or postal service of a document if the document given or posted to the person being served is a photocopy or a faxed copy of the document instead of the original.
(1)If a person certifies in writing that on the day and at the time and place stated in the certificate the person —
(a)personally served on a person the requisite copy or copies of a summons or restraining order in accordance with this Division;
(b)orally served on a person a restraining order in accordance with this Division and that the person so served appeared to understand what was said; or
(c)posted to a person the requisite copy or copies of a restraining order or summons in accordance with this Division; or
(d)effected substituted service in accordance with section 60,
in the absence of evidence to the contrary, the certificate is sufficient proof of service of the summons or restraining order on the person stated to have been so served.
(2)If a person certifies in writing that on the day and at the time and place stated in the certificate the person —
(a)personally notified, or delivered a document to, a person; or
(b)posted to a person a notification or document in accordance with section 56,
in the absence of evidence to the contrary, the certificate is sufficient proof of the notification of, or delivery of the document to, the person referred to in the certificate.
[Section 58 amended: No. 49 of 2016 s. 57.]
59.Service of restraining order, certain people to be notified of
(1)As soon as practicable after a restraining order is served on the person who is bound by the order, the person who served the order is to —
(a)complete the proof of service copy of the order; and
(b)cause it to be delivered to the registrar.
(2)As soon as practicable after the registrar receives the proof of service copy of a restraining order, the registrar is to notify the applicant, and in the case of an application under section 24A(1)(b) or (2), the person on whose behalf the application was made, that the order has been served.
(3)A notification under subsection (2) may be given in such manner as the registrar thinks fit, including, if authorised by the person who is to receive the notification, by email, text message to a mobile phone number or some other form of electronic communication using contact details provided by the person.
[Section 59 inserted: No. 5 of 2008 s. 100; amended: No. 13 of 2020 s. 38.]
(1)Substituted service of a document may occur by order of a court if the court is satisfied that a person is deliberately avoiding being served with the document.
(1A)Substituted service of an FVRO may also occur —
(a)by order of a court if —
(i)the court is satisfied that personal service or service by post is impracticable for any reason (including that the person to be served does not have a fixed address or is located at a place that is too remote to reasonably permit personal service or service by post); or
(ii)the court is satisfied that the person to be served is likely to avoid personal service or service by post; or
(iii)the court considers that substituted service is necessary, appropriate or advisable in the circumstances of the particular case (including that any delay in service is likely to put at risk the safety of the person seeking to be protected);
or
(b)if a person attempting to serve the order has failed to achieve personal service after taking the steps prescribed by the regulations (including on the basis that substituted service may only occur with the approval of a person of a prescribed class or holding a prescribed office).
(2)A document is served by substituted service if the person serving it —
(a)takes such steps as a court directs to bring the document to the attention of the person being served; or
(b)in a case where subsection (1A)(b) applies, takes the steps prescribed by the regulations.
(3)The court is to consider making an order for substituted service in relation to an FVRO in every case, whether it is an interim order or a final order.
(4)The court may make an order for substituted service in relation to an FVRO at the time of making the FVRO or at any other time during the relevant proceedings.
[Section 60 amended: No. 49 of 2016 s. 58; No. 13 of 2020 s. 39.]
Division 3 — Breach of restraining order or police order
[Heading amended: No. 38 of 2004 s. 40.]
61.Breach of restraining order
(1)A person who is bound by an FVRO and who breaches that order commits an offence.
Penalty for this subsection: a fine of $10 000 or imprisonment for 2 years, or both.
(1A)A person who is bound by a VRO and who breaches that order commits an offence.
Penalty for this subsection: a fine of $10 000 or imprisonment for 2 years, or both.
(2)A person who is bound by an MRO and who breaches that order commits an offence.
Penalty for this subsection: a fine of $1 000.
(2a)A person who is bound by a police order and who breaches that order commits an offence.
Penalty for this subsection: a fine of $10 000 or imprisonment for 2 years, or both.
(3)Proceedings for a breach of a restraining order or a police order are to be brought —
(a)if the alleged offender is a child, in the Children’s Court; or
(b)otherwise, in the Magistrates Court.
(4)It is taken to be an aggravating factor for the purposes of section 7(1) of the Sentencing Act 1995 if, in committing an offence under this section, a child with whom the offender is in a family relationship is exposed to family or personal violence.
(5)For the avoidance of doubt, subsection (4) does not affect the discretion of a court to decide whether or not any factor is an aggravating factor for the purposes of any offence.
(6)A prosecution for an offence under subsection (1), (1A) or (2a) must be commenced within 2 years after the day on which the offence is alleged to have been committed.
[Section 61 amended: No. 22 of 2000 s. 12; No. 50 of 2003 s. 90(2); No. 38 of 2004 s. 41; No. 59 of 2004 s. 124; No. 49 of 2016 s. 59; No. 13 of 2020 s. 40.]
61A.Penalty for repeated breach of restraining order
(1)In this section —
conviction —
(a)includes a finding or admission of guilt despite a conviction not being recorded under the Young Offenders Act 1994 section 55; and
(b)does not include a conviction that has been set aside or quashed.
(2)This section applies if a person —
(a)is convicted of an offence under section 61(1) or (2a) (the relevant offence); and
(b)has committed, and been convicted of, at least 2 offences under section 61(1) or (2a) (the previous offences) within the period of 2 years before the person’s conviction of the relevant offence.
(2A)For the purposes of subsection (2)(b) each of the previous offences is to be counted, regardless of whether the convictions for them —
(a)were recorded before or after the date on which the relevant offence, or any of the previous offences, was committed; or
(b)have been counted in sentencing under this section for a different relevant offence.
(2B)For the purposes of subsection (2)(b), convictions for 2 or more previous offences committed on the same day are to be treated as a single conviction.
(3)This section applies despite the Sentencing Act 1995 and the Young Offenders Act 1994.
(4)Except as provided in subsection (6), if the person is a child a penalty must be imposed on the person for the relevant offence that is or includes —
(a)imprisonment under the Young Offenders Act 1994 section 118(1)(a); or
(b)detention under the Young Offenders Act 1994 section 118(1)(b).
(5)Except as provided in subsection (6), if the person is not a child a penalty must be imposed on the person for the relevant offence that is or includes imprisonment.
(6)A court may decide not to impose a penalty on the person that is or includes imprisonment or detention, as the case requires, if —
(a)imprisonment or detention would be clearly unjust given the circumstances of the offence and the person; and
(b)the person is unlikely to be a threat to the safety of a person protected or the community generally.
(7)A court that does not, because of subsection (6), impose a penalty on a person that is or includes imprisonment or detention must give written reasons why imprisonment or detention was not imposed.
(8)In subsection (7) —
written reasons includes reasons that are —
(a)given orally and subsequently transcribed; or
(b)given orally but also recorded electronically in a format that enables them to be subsequently transcribed.
[Section 61A inserted: No. 32 of 2011 s. 15; amended: No. 20 of 2013 s. 118; No. 49 of 2016 s. 60.]
61B.Protected person aiding breach of restraining order or police order
(1)In this section —
aid, in relation to the breach of an order, means —
(a)do or omit to do any act for the purpose of enabling or aiding a person bound by the order to commit the breach; or
(b)aid a person bound by the order to commit the breach; or
(c)counsel or procure a person bound by the order to commit the breach;
bound person, in relation to an order, means the person bound by the order;
order means a restraining order or a police order;
protected person, in relation to an order, means the person protected by the order.
(2)In the sentencing of a bound person for an offence under section 61, any aiding of the breach of the order by the protected person is not a mitigating factor for the purposes of the Sentencing Act 1995 section 8(1).
(3)Despite The Criminal Code section 7, the protected person does not commit an offence under section 61 by aiding the breach of the order.
(4)However in the case of a breach of a restraining order, the court sentencing the bound person may, if it is satisfied that the protected person aided the breach, on its own initiative exercise the powers in section 49(1)(b) and (c) and (1a) as if it were hearing an application under section 45, and section 49(1b) to (5) apply with any necessary modifications.
[Section 61B inserted: No. 32 of 2011 s. 15.]
61C.Report under s. 10V to be considered in sentencing for breach of FVRO
A court convicting a person for an offence under section 61 for the breach of an FVRO must consider any report under section 10V relating to the FVRO.
[Section 61C inserted: No. 49 of 2016 s. 61.]
(1)It is a defence to a charge under section 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was —
(a)using a process of family dispute resolution, as defined in the Family Court Act 1997; or
(b)instructing, or acting through, a legal practitioner or a person acting under section 48 of the Aboriginal Affairs Planning Authority Act 1972, or using conciliation, mediation or another form of consensual dispute resolution provided by a legal practitioner; or
(c)acting in accordance with an action taken by a person or authority under a child welfare law, within the meaning of section 50B(4); or
(ca)attending a court hearing in proceedings under this Act or under any other written law; or
(d)acting as the result of such an emergency that an ordinary person in similar circumstances would have acted in the same or a similar way.
[(2)deleted]
[Section 62 inserted: No. 38 of 2004 s. 42; amended: No. 35 of 2006 s. 208; No. 21 of 2008 s. 699; No. 49 of 2016 s. 62.]
Division 3A — Police functions
[Heading inserted: No. 38 of 2004 s. 43(1).]
62A.Investigation of suspected family violence
A police officer is to investigate whether family violence is being, or has been committed, or whether family violence is likely to be committed, if the police officer reasonably suspects that a person is committing, or has committed, family violence which —
(a)is a criminal offence; or
(b)has put the safety of a person at risk.
[Section 62A inserted: No. 38 of 2004 s. 43(1); amended: No. 49 of 2016 s. 63.]
62B.Entry and search of premises if family violence suspected
(1)If a police officer reasonably suspects that a person is committing family violence, or that family violence was committed before the officer’s arrival, on any premises, the officer may without a warrant enter those premises and may remain in those premises for as long as the officer considers necessary —
(a)to investigate whether or not family violence has been committed; and
(b)to ensure that, in the officer’s opinion, there is no imminent danger of a person committing family violence on the premises; and
(c)to give or arrange for such assistance as is reasonable in the circumstances.
(1a)A police officer must not enter premises under subsection (1) unless the officer has a senior officer’s approval given under section 62D or —
(a)the officer believes on reasonable grounds that he or she should exercise the powers under subsection (1) urgently; and
(b)the officer cannot use remote communication to apply for a senior officer’s approval under section 62D.
(1b)A police officer who enters premises without a senior officer’s approval given under section 62D must report why the entry was made and what happened at the premises to a senior officer as soon as practicable after the entry.
(2)If, after entering premises (under subsection (1) or otherwise) a police officer reasonably suspects that family violence is being committed, or was committed before the officer’s arrival, on the premises the officer without further authority may —
(a)search the premises to establish whether any person on the premises —
(i)is in need of assistance; or
(ii)is in possession of a weapon;
and
(b)search —
(i)the premises for a weapon; and
(ii)any person on the premises whom the officer reasonably suspects is in possession of a weapon;
and
(c)seize any weapon found on the premises, or on a person, that the officer reasonably suspects —
(i)was used to commit family violence; or
(ii)may be used to commit family violence.
(3)A police officer may use such force, and such assistance, as is necessary and reasonable in the circumstances in order to perform a function under this section.
(4)A weapon seized under this section is to be delivered to the Commissioner of Police, and dealt with, in the manner prescribed in the regulations.
(5)A police officer who seizes a weapon is, where practicable, to inform the person from whose possession it is seized of the place to which the weapon is to be taken.
(6)This section does not limit any other power a police officer may have under this Act, any other written law or at common law.
[Section 62B inserted: No. 38 of 2004 s. 43(1); amended: No. 5 of 2008 s. 101; No. 49 of 2016 s. 64.]
62C.Action to be taken by police officer after investigating suspected family violence
After an investigation referred to in section 62A, or after entering or searching premises under section 62B, a police officer is to make —
(a)an application for a restraining order under section 18(1)(a), 24A(1)(b) or 25(1)(b); or
(b)a police order; or
(c)a written record of the reasons why he or she did not take either of the actions set out in paragraph (a) or (b).
[Section 62C inserted: No. 38 of 2004 s. 43(1); amended: amended: No. 49 of 2016 s. 65.]
62D.Approval of senior officer
(1)An application for the approval of a senior officer referred to in section 62B(1a) must be made to another officer who is a senior officer and who is not involved in the proposed entry.
(2)An application to a senior officer may be made, and the approval may be given, orally in person or by remote communication.
(3)A police officer making the application for approval to a senior officer must —
(a)give the address, or describe the premises, to which it relates, and, if known, the person to whom it relates; and
(b)state the grounds on which the police officer suspects that —
(i)a person is on the premises; and
(ii)a person has committed, or is committing, family violence against another person.
(4)On an application for the approval of a senior officer the senior officer may give approval for the entry of the premises without a warrant at any time.
(5)A senior officer must not give approval for the entry unless satisfied that there are reasonable grounds for the police officer to suspect that a person is committing family violence, or that family violence was committed before the officer’s arrival, on the premises.
(6)As soon as practicable after giving approval a senior officer must make a record of —
(a)the date and time when it was given; and
(b)the reasons for giving it.
(7)The approval of a senior officer referred to in section 62B(1) has effect only for a period of 24 hours after it is given by the officer.
(8)In this section —
remote communication means any way of communicating at a distance including by telephone, fax, email and radio;
senior officer means a police officer who —
(a)is senior in rank to the officer making the application; and
(b)is of or above the rank of sergeant.
[Section 62D inserted: No. 38 of 2004 s. 43(1); amended: No. 49 of 2016 s. 66.]
(1)If a person who is bound by an FVRO or VRO does not give up possession of a firearm or firearms licence in accordance with section 14(2), a police officer may, without a warrant, enter a place where —
(a)a firearm that is, or is reasonably suspected to be, in the possession of the person; or
(b)a firearms licence held by the person,
is reasonably suspected to be, and search for and seize the firearm or firearms licence.
(1a)In order to exercise a power under subsection (1), a police officer may use any force against any person or thing that it is reasonably necessary to use in the circumstances.
(2)A firearm or firearms licence seized under subsection (1) is to be delivered to the Commissioner of Police, and dealt with, in the manner prescribed in the regulations.
[Section 62E inserted: No. 38 of 2004 s. 43(1); amended: No. 5 of 2008 s. 102; No. 49 of 2016 s. 67.]
[Section 62E. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M.]
62F.Detention of respondent during telephone hearing or while police order is being made
(1)If —
(a)a telephone application has been, or is about to be, made; or
(b)a police order is being made,
a police officer may, without a warrant and in order to facilitate service of any resulting order on the person against whom the order is being, or is to be, sought or made —
(c)order that person to remain in a place designated by the police officer, or accompany the police officer to a police station or some other place and wait at that place, while —
(i)the telephone application is made and heard; or
(ii)the police order is made;
and
(d)if the person does not, or the police officer reasonably believes the person will not, comply with the order under paragraph (c), arrest and detain the person in custody for up to 2 hours.
(1A)A person who, without reasonable excuse, does not comply with an order under section 62F(1)(c) commits an offence.
Penalty for this subsection: a fine of $3 000 or imprisonment for 12 months.
(2)If a police officer suspects on reasonable grounds that a restraining order has been made but not served on the person who is bound by it, the officer may, without a warrant and in order to facilitate service of the order on the person —
(a)order that person to remain in a place designated by the police officer, or accompany the police officer to a police station or some other place and wait at that place, while the officer gets the restraining order; and
(b)if the person does not, or the officer reasonably believes the person will not, comply with the order under paragraph (a), arrest and detain the person in custody for up to 2 hours.
(3)A person who, without reasonable excuse, does not comply with an order under section 62F(2)(a) commits an offence.
Penalty for this subsection: a fine of $3 000 or imprisonment for 12 months.
[Section 62F inserted: No. 38 of 2004 s. 43(1); amended: No. 5 of 2008 s. 103; No. 49 of 2016 s. 68.]
[Section 62F. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M.]
62G.Police officer may conduct hearing for applicant
A police officer is authorised, at any stage of a hearing of an application for a restraining order made by another person, to conduct proceedings on behalf of that person, if the person so requests.
[Section 62G inserted: No. 38 of 2004 s. 43(1).]
63.Making restraining orders during other proceedings
(1)A court, including a judicial officer considering a case for bail, before which a person charged with an offence is appearing may make a restraining order against that person or any other person who gives evidence in relation to the charge.
(2)A court hearing proceedings under the Family Court Act 1997 or the Family Law Act 1975 of the Commonwealth may make a restraining order against a party to the proceedings or any other person who gives evidence in the proceedings.
(3)A court hearing protection proceedings under the Children and Community Services Act 2004 may make a restraining order against a party to the proceedings or any other person who gives evidence in the proceedings.
(3AA)To avoid doubt, a court acting under subsection (2) or (3) may make a restraining order in the absence of the person against whom the order is made if the court is satisfied that the order should be made in the circumstances.
(3a)A restraining order may be made under this section —
(a)on the initiative of the court; or
(b)at the request of a party to the proceedings; or
(c)if the person seeking to be protected is a child, at the request of —
(i)the child; or
(ii)a parent or guardian of the child on behalf of the child; or
(iii)in a matter referred to in subsection (3), a child welfare officer on behalf of the child;
or
(d)if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, at the request of the guardian on behalf of the person; or
(e)at the request of a person who gives evidence in the proceedings or in relation to the charge.
(3b)A court may make a restraining order under this section against a person and for the protection of another person even if a restraining order in similar terms in respect of those persons is in force, but if it does, the court must specify that the order comes into force immediately the earlier order expires.
(4)A court is not to make a restraining order under this section unless —
(a)the court is satisfied that there are grounds for making the order under section 10D, 11A or 34, as is appropriate to the case; and
(b)the court has had regard to the matters set out in section 10F, 12 or 35, as is appropriate to the case.
(4AA)In the absence of exceptional circumstances, a court is taken to have grounds for making an FVRO against a person if —
(a)the person pleads guilty to, or is found guilty of —
(i)an offence against The Criminal Code section 301, 304(1), 313, 317, 317A, 323, 324, 333, 338A, 338B, 338C or 338E; or
(ii)an offence against The Criminal Code section 444 that is dealt with summarily;
and
(b)the court is satisfied, by a victim impact statement given in relation to the offence or by any other means, that a family member of the person wants to be protected by the FVRO.
(4AB)An FVRO made under subsection (4AA) is to restrain the person from doing all or any of the following —
(a)being on or near premises where the person seeking to be protected lives or works;
(b)approaching within a specified distance of the person seeking to be protected;
(c)communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;
(d)anything else referred to in section 10G that is specified by the court in the FVRO.
(4a)Subject to subsection (4B) a restraining order made under this section is a final order.
(4B)A restraining order made by a court under subsection (2) or (3) will be an interim restraining order if —
(a)the person who would be bound by the order objects to it being made and the court considers that the order should be an interim order in the circumstances; or
(b)the person against whom the order is made is not present when the order is made.
(4c)Sections 33, 42, 43 and 44 apply to an interim order made under subsection (4B)(a) as if the person bound by the order —
(a)were the respondent; and
(b)had returned the respondent’s endorsement copy of the interim order —
(i)in accordance with section 31; and
(ii)on the day after the interim order was made; and
(iii)indicating that the person objected to the order becoming final.
(5)If a restraining order has been, or is about to be, made under this section, the court may, in order to facilitate service of the restraining order, order the person against whom the order has been, or is about to be, made to remain in a place designated by the court for a period of not more than one hour until the order is served on that person.
(6)A restraining order made under this section by a judicial officer is taken to have been made by the court of which that judicial officer is an officer.
(6a)A restraining order made under subsection (1) by a justice of the peace considering a case for bail is taken to have been made by —
(a)the Children’s Court if the person charged is a child;
(b)the Magistrates Court in any other case.
(7)A restraining order made under this section is to be prepared and served —
(a)by the registrar in accordance with section 10(1); or
(b)if the registrar is not available at the time the order is made, by the person making that order in accordance with section 10(1) as if that person were the registrar.
[Section 63 amended: No. 22 of 2000 s. 13; No. 34 of 2004 Sch. 2 cl. 23(3); No. 38 of 2004 s. 44 and 55; No. 59 of 2004 s. 123 and 124; No. 5 of 2008 s. 104; No. 49 of 2016 s. 69; No. 13 of 2020 s. 41.]
63A.FVRO or VRO made if certain violent personal offences committed
(1A)In this section —
violent personal offence means —
(a)an offence against The Criminal Code section 283, 297, 325, 326, 327 or 328; or
(b)where the person committing the offence is in a family relationship with a victim of the offence —
(i)an offence against The Criminal Code section 292, 293, 294, 304(2), 320, 321, 321A, 329 or 332;
(ii)an offence against The Criminal Code section 444 that is dealt with on indictment.
(1)A court convicting a person for a violent personal offence is —
(a)to make an FVRO or VRO, as is appropriate to the case, against that person for the protection of a victim of the offence unless there is such an order in force already for the period of the life of the person who committed the offence; or
(b)where an FVRO or VRO, as is appropriate to the case, is in force for the protection of a victim of the offence, to vary that order by extending the duration of the order.
(2)An order made, or varied, under subsection (1) is to specify that the order is to remain in force for the period of the life of the person who committed the offence.
(3)A restraining order made under this section is a final order.
(4)A court must not make an order under this section if a victim of the offence for whose benefit the court proposes to make the order objects to that order being made.
[Section 63A inserted: No. 38 of 2004 s. 45; amended: No. 49 of 2016 s. 70.]
63B.Circumstances to be taken into account when sentencing for certain offences
(1)In this section —
violent personal offence means —
(a)an offence mentioned in The Criminal Code section 277; or
(b)an offence against The Criminal Code section 281, 283, 292, 293, 294, 304, 320, 321, 321A, 329, 332, 333, 338A, 338B, 338C, 338E or 444.
(2)Where a person commits a violent personal offence, the court sentencing the person is to determine the seriousness of the offence by reference to whether —
(a)the person is in a family relationship with a victim of the offence; or
(b)a child was present when the offence was committed; or
(c)the conduct of the person in committing the offence constituted a breach of a restraining order.
(3)Nothing in subsection (2) affects the discretion of a court to decide whether or not a circumstance set out in that subsection is a circumstance to take into account in sentencing an offender for any other offence.
[Section 63B inserted: No. 49 of 2016 s. 71.]
63C.Criminal and civil liability not affected by restraining orders
(1)A court may make or vary a restraining order even though the respondent has been charged with, or convicted of, an offence arising out of the same conduct as that out of which the application for the order arose.
(2)The making or varying of a restraining order does not, except as provided by this Act, affect the civil or criminal liability of a person bound by the order in respect of the same conduct as that out of which the application for the order arose.
[Section 63C inserted: No. 38 of 2004 s. 45.]
63D.Court to give reasons for certain decisions
(1)A court must give reasons for —
(a)making an order relating to an FVRO under section 23(1)(b) or (c), 29(1)(b) or (c) or 40(3)(b) or (c); or
(b)refusing to make an order under section 43(1) relating to an FVRO.
(2)The reasons must address the principles referred to in section 10B(1)(a), (b) and (c).
[Section 63D inserted: No. 49 of 2016 s. 72.]
(1)A person aggrieved by the decision of a court —
(a)under section 23(1)(b) or 29(1)(b) to dismiss an application; or
(b)to do any of the following —
(i)make, vary or cancel a final order;
(ii)refuse to make, vary or cancel a final order;
(iii)make any other order in relation to a final order,
may appeal against that decision in accordance with this section.
(2)If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection (6a)(a) applies.
(3)If the decision was made by the Children’s Court when constituted so as not to consist of or include a judge, the appeal is to be made in accordance with the Children’s Court of Western Australia Act 1988 section 41.
(4)If the decision was made by the Children’s Court when constituted so as to consist of or include a judge, the appeal is to be made in accordance with the Children’s Court of Western Australia Act 1988 section 42A.
(5)If the decision was made by the District Court, the appeal is to be made to the Court of Appeal in accordance with section 79(1)(a) of the District Court of Western Australia Act 1969.
(6)If the decision was made by a judge of the Supreme Court, the appeal is to be made to the Court of Appeal in accordance with section 58 of the Supreme Court Act 1935.
(6a)If the decision was made by a court hearing proceedings under the Family Court Act 1997 or the Family Law Act 1975 of the Commonwealth, the appeal is to be made —
(a)in the case of a decision of a court of summary jurisdiction, to the Family Court of Western Australia in accordance with section 211(2) of the Family Court Act 1997; and
(b)otherwise to the Court of Appeal of the Supreme Court in accordance with section 211(3) of the Family Court Act 1997.
(6b)If —
(a)the decision was made under section 63(1) to make a restraining order against a person charged with an offence; and
(b)the person charged is convicted of that or another offence; and
(c)the person charged appeals against the conviction or the sentence imposed,
any appeal under subsection (1) by the person charged against the decision is to be made to the court that hears and determines the appeal against the conviction or sentence.
[Section 64 amended: No. 22 of 2000 s. 14; No. 45 of 2004 s. 37; No. 59 of 2004 s. 124; No. 14 of 2013 s. 5; No. 49 of 2016 s. 73.]
65.Orders not to conflict with certain family orders
If a court does not have jurisdiction to adjust a family order the court is not to make a restraining order that conflicts with that family order.
66.Notification of family orders
(1)In this section —
inform the court means —
(a)in the case of an application for a restraining order made in person, state in the application; or
(b)in the case of a telephone application, inform the authorised magistrate at the hearing.
(2)An applicant must inform the court of any family order, or any pending application for such an order, of which the applicant is aware.
(3)If the applicant is aware of an existing family order, the applicant —
(a)in the case of an application made in person where the person seeking to be protected is a party to the family order, must provide a copy of that order to the court; or
(b)in any other case, must inform the court of the terms of the family order so far as the applicant is aware of them.
(4)If the applicant is aware of a pending application for a family order, the applicant, so far as the applicant is aware of the information, must inform the court of —
(a)the names of the parties to the application; and
(b)the terms of the family order being sought; and
(c)whether the application is being opposed.
(5)If an applicant is making an application on behalf of another person, the applicant must take reasonable steps to obtain from the person details of any family order, or pending application for such an order, of which the person is aware.
(6)A restraining order is not invalid merely because the applicant does not comply with this section.
[Section 66 amended: No. 38 of 2004 s. 55.]
(1)In addition to the specific provisions of this Act regarding adjournments, a court may also grant an adjournment —
(a)at a final order hearing, if the court is satisfied that an injustice would result if an adjournment were not granted; or
(b)at any other hearing, if the court is satisfied that there is good reason to do so,
when, and for the period of time, the court considers appropriate.
(2)If a court grants an adjournment under subsection (1), it must give written reasons why the adjournment was granted.
(2A)The reasons must address the principles referred to in section 10B(1)(a), (b) and (c).
(3A)In subsection (2) —
written reasons includes reasons that are —
(a)given orally and subsequently transcribed; or
(b)given orally but also recorded electronically in a format that enables them to be subsequently transcribed.
(3)If an adjournment is granted, whether under subsection (1) or under another provision, the registrar is to notify each party who is permitted to attend the hearing who was not present when the adjournment was granted.
[Section 67 inserted: No. 38 of 2004 s. 46; amended: No. 59 of 2004 s. 123; No. 20 of 2013 s. 120; No. 49 of 2016 s. 74.]
68.Orders may be extended to apply to other people
(1)When making a restraining order a court may extend the order to operate for the benefit of a person named in the order in addition to the person protected by the order (a third party) if it is satisfied that it would have been able to make the order in respect of the third party had the third party made a separate application for the order.
(2)If an order is so extended the provisions of this Act apply to the named person as if that person were the person protected by the order.
(3)This section does not apply to an FVRO made under section 63(4AA).
[Section 68 amended: No. 49 of 2016 s. 75.]
(1)Subject to subsections (2) and (3) and the regulations, a court may make such orders as to costs as it considers appropriate.
(2)A court is not to order an applicant for a restraining order to pay costs to the respondent unless it considers the application was frivolous or vexatious.
(3)A court is not to order costs to be paid by an applicant if the applicant is a police officer who —
(a)makes an application under this Act for a restraining order, represents another officer at a hearing or acts under section 62G; and
(b)acts in good faith and in the normal course of duty in making the application, or appearing at the hearing.
[Section 69 amended: No. 38 of 2004 s. 47.]
70.Information on identity of certain person restricted
(1)Subject to subsection (1A) or (3), any information in the custody of a court that would, or would be likely to, reveal or lead to the revelation of the whereabouts of —
(a)a party to proceedings under this Act; or
(b)any person who gives evidence in proceedings under this Act,
is not to be disclosed by the court or a registrar of the court —
(c)to a party to the proceedings; or
(d)in such a manner that the information will, or may, be revealed to a party to the proceedings.
(1A)Subsection (1) does not apply to a disclosure of information to a person who is, or who is in a class of persons that is, prescribed in the regulations for the purposes of this subsection.
(1B)If the information is disclosed to a person referred to in subsection (1A) —
(a)no civil or criminal liability is incurred in respect of the disclosure of the information; and
(b)the disclosure of the information is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by any written or other law; and
(c)the disclosure of the information is not to be regarded as a breach of professional ethics or standards or as unprofessional conduct.
(2)Subject to subsection (3), a person must not publish in a newspaper or periodical publication or by radio broadcast, television or other electronic means, or otherwise disseminate to the public or to a section of the public by any means any information that would, or would be likely to, reveal or lead to the revelation of the whereabouts of —
(a)a party to proceedings under this Act; or
(b)any person who gives evidence in proceedings under this Act.
Penalty for this subsection: a fine of $6 000 or imprisonment for 18 months.
(3)This section does not apply if the court is satisfied —
(a)that the person to whom the information is to be, or may be, disclosed is already aware of the whereabouts of the person to whom the information applies; or
(b)that the person who would otherwise be protected by this section —
(i)understands the effect of this section; and
(ii)has agreed that this section is not to apply,
and specifies in the restraining order that this section does not apply.
(4)In this section —
under this Act includes proceedings in which the existence of a restraining order is a material fact in the proceedings.
[Section 70 inserted: No. 38 of 2004 s. 48; amended: No. 5 of 2008 s. 105; No. 49 of 2016 s. 76.]
(1)In this section —
interested party means —
(a)the Commissioner of Police; or
(b)the chief executive officer of the Public Sector agency principally assisting the Minister in the administration of this Act; or
(ba)the chief executive officer of the Public Sector agency principally assisting the Minister administering Part 8 of the Sentence Administration Act 2003 in its administration; or
(c)the CEO (child welfare);
prescribed information means information of a description or class prescribed in the regulations about a person protected by an FVRO or VRO, or a child affected by such an order.
(2)An interested party may provide to another interested party prescribed information if the parties agree that the provision of such information is necessary to ensure the safety of a person protected by an FVRO or VRO, or the wellbeing of a child affected by such an order.
(3)Any information provided under subsection (2) must be provided in confidence.
(4)If information is provided under subsection (2) in confidence and good faith —
(a)no civil or criminal liability is incurred in respect of the provision of the information; and
(b)the provision of the information is not to be regarded as a breach of section 70 or of any duty of confidentiality or secrecy imposed by any written or other law; and
(c)the provision of the information is not to be regarded as a breach of professional ethics or standards or as unprofessional conduct.
(5)Information provided under subsection (2) must not be used by the party to whom the information is provided for any purpose other than that specified in subsection (2).
[Section 70A inserted: No. 38 of 2004 s. 48; amended: No. 65 of 2006 s. 68; No. 49 of 2016 s. 77.]
71.Notification when firearms order made
(1)In this section —
firearms order means —
(a)an FVRO or VRO; or
(b)an MRO that prohibits a person from being in possession of a firearm;
responsible person means, in relation to a restrained person who uses or has access to a firearm in the course of that person’s usual occupation, the person who holds a firearms licence (or the equivalent under a law of another State or Territory) for that firearm, or if there is no such person —
(a)if the restrained person is a police officer or a member of an armed force — the officer in command of that police force or armed force in the State or Territory where the restrained person is based; or
(b)if the restrained person is otherwise employed or engaged by an employing authority, as defined in the Public Sector Management Act 1994, (or an equivalent body for the purposes of a corresponding law of another State, a Territory or the Commonwealth) — that employing authority (or equivalent body); or
(c)in any other case — the person by whom the restrained person is employed or engaged;
restrained person means the person bound by a firearms order.
(2)A person who personally or orally serves a firearms order must —
(a)ask the restrained person —
(i)whether the person uses or has access to any firearms in the course of the restrained person’s usual occupation; and
(ii)if so, the name and business address of the responsible person; and
(iii)whether the person and another person (the co‑licensee) hold firearms licences in respect of the same firearm; and
(iv)if so, the name and address of the co‑licensee;
and
(b)complete the relevant part of the police copy of the order in accordance with the response given by the restrained person to those questions; and
(c)tell the restrained person that the responsible person will be notified that the order has been made.
(3)A restrained person who fails to answer, or gives a false answer to, a question asked under subsection (2)(a) commits an offence.
Penalty for this subsection: a fine of $2 000 or imprisonment for 9 months.
(4)On receipt of a police copy of an order that indicates that the restrained person uses or has access to a firearm in the course of the restrained person’s usual occupation or holds a firearms licence in respect of a firearm for which a co‑licensee also holds a firearms licence the Commissioner of Police is to promptly notify the responsible person or co‑licensee, as the case requires —
(a)that a restraining order has been made against the restrained person; and
(b)that the order prohibits the restrained person from being in possession of a firearm (or if the court acted under section 14(5), that the restrained person is prohibited from being in possession of a firearm other than on the conditions specified by the court under that section); and
(c)of the duration of the order; and
(d)that it is an offence for the responsible person or co‑licensee to allow the restrained person to use or have access to a firearm in contravention of the order.
(5)When the Commissioner of Police receives the police copy of a firearms order that —
(a)has been served on the restrained person by post; and
(b)is a final order which was preceded by an interim order in relation to which the responsible person or co‑licensee was notified under subsection (4),
the Commissioner of Police is to promptly notify the responsible person or co‑licensee of the matters set out in subsection (4).
(6)A responsible person or co‑licensee notified under subsection (4) or (5) who allows the restrained person to use or have access to a firearm, except as permitted under the firearms order, commits an offence.
Penalty for this subsection:
(a)in the case of a responsible person — a fine of $4 000;
(b)in the case of a co‑licensee — a fine of $4 000 or imprisonment for 12 months.
[Section 71 amended: No. 50 of 2003 s. 90(3); No. 49 of 2016 s. 78.]
72.Practice and procedure generally
(1)Unless otherwise prescribed by this Act, the practices and procedures to be followed in matters relating to restraining orders are, if the matter is being heard by —
(a)the Magistrates Court, the practices and procedures applying in that court under the Magistrates Court (Civil Proceedings) Act 2004; or
(b)the Children’s Court, the practices and procedures applying in the non‑criminal jurisdiction of that court under the Children’s Court of Western Australia Act 1988.
[(2)deleted]
[Section 72 amended: No. 59 of 2004 s. 124.]
The prescribed forms for a restraining order and a telephone order must contain a brief summary of the effect of section 44B.
[Section 72A inserted: No. 49 of 2016 s. 79.]
[72AA. 1MModifications to be applied in order to give effect to Cross‑border Justice Act 2008: section inserted 1 Nov 2009 and amended 1 Jul 2017. See endnote 1M.]
(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or that are necessary or convenient to be prescribed to give effect to the purposes of this Act.
(2)Without limiting subsection (1), regulations may be made in relation to —
(a)practices and procedures to be followed; and
(b)the manner in which firearms and firearms licences are to be —
(i)given up by a person who is bound by a restraining order; and
(ii)delivered to, and dealt with by, a prescribed person;
and
(c)facilitating the effective operation of restraining orders which prohibit or restrict a person from being in possession of a firearm; and
(d)forms to be used; and
(e)fees to be paid; and
(f)orders as to costs.
[Section 73 amended: No. 38 of 2004 s. 49; No. 49 of 2016 s. 80.]
73A.Review of certain amendments relating to FVROs
(1)In this section —
review date means the second anniversary of the day on which the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 section 3 comes into operation.
(2)As soon as practicable after the review date the Minister is to review the operation and effectiveness of the amendments made to this Act by the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 Part 2.
(3)The Minister is to cause a report of the review to be laid before each House of Parliament within 6 months after the review date.
[Section 73A inserted: No. 49 of 2016 s. 81.]
Part 7 — Interstate restraining orders
In this Part —
interstate order means a restraint order made by a court of another State or Territory under a corresponding law of that State or Territory;
registered order means an interstate order registered under this Part;
registrar means the registrar to whom an application for registration of an interstate order is made or another registrar of the same court.
[Section 74 amended: No. 38 of 2004 s. 50; No. 59 of 2004 s. 124.]
74A.Interstate DVOs under Domestic Violence Orders (National Recognition) Act 2017 cannot be registered
(1)An application cannot be made under section 75 in respect of an interstate order that is an interstate DVO as defined in the Domestic Violence Orders (National Recognition) Act 2017 section 6.
(2)To avoid doubt, subsection (1) applies whether the interstate DVO was made before, on or after the day on which the Domestic Violence Orders (National Recognition) Act 2017 section 47 comes into operation.
[Section 74A inserted: No. 10 of 2017 s. 47.]
74B.Interstate orders registered before commencement of Domestic Violence Orders (National Recognition) Act 2017
(1)This section applies to an interstate order that, immediately before the day on which the Domestic Violence Orders (National Recognition) Act 2017 section 47 comes into operation, is registered under this Part.
(2)Unless subsection (4) applies, the registration of the order is not affected by the Domestic Violence Orders (National Recognition) Act 2017 and this Part continues to apply in respect of the order.
(3)The order is not a local DVO for the purposes of the Domestic Violence Orders (National Recognition) Act 2017.
(4)If, under the Domestic Violence Orders (National Recognition) Act 2017, the order becomes a recognised DVO in Western Australia —
(a)the order ceases to be registered under this Part; and
(b)that Act applies to the order in the same way as it applies to another recognised DVO that, under that Act, is a non‑local DVO.
[Section 74B inserted: No. 10 of 2017 s. 47.]
75.Application for registration of interstate order
(1)An application for registration of an interstate order may be made by —
(a)the person named in the order for whose benefit the order is made;
(b)a police officer on behalf of that person.
(1a)An application for registration of an interstate order may also be made —
(a)if the person named in the order for whose benefit the order is made is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person named in the order for whose benefit the order is made is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990 (or a similar Act of the State or Territory in which the interstate order was made), by the guardian on behalf of the person.
(2)An application for registration is to be made in the prescribed form to a registrar of the Magistrates Court.
(3)An application for registration need not be served on the person who is bound by the order.
[Section 75 amended: No. 22 of 2000 s. 15; No. 38 of 2004 s. 51; No. 59 of 2004 s. 124; No. 49 of 2016 s. 82.]
[Section 75. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M.]
(1)If a person makes an application for registration of an interstate order the registrar is to —
(a)register the interstate order; and
(b)notify —
(i)the court in which the interstate order was made; and
(ii)the person who applied for registration; and
(iii)the Commissioner of Police,
of the registration; and
(c)cause a copy of the interstate order to be delivered to the Commissioner of Police.
(2)Notice of the registration is not to be given to the person who is bound by the order unless the person who applied for registration has requested in writing that such notice be given.
[Section 76 amended: No. 59 of 2004 s. 123.]
[Section 76. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M.]
(1)A registered order operates in this State as if it were an FVRO or VRO which is a final order —
(a)with the terms (including as to its duration) set out in the order or applying to it under the law under which it was made; and
(b)served in accordance with this Act on the day on which it was registered,
and the provisions of this Act apply to it as if it were such an order.
(1a)Without limiting subsection (1), for the purposes of applying Part 5 to an interstate order —
(a)a reference to varying a final order is to be read as a reference to making an order varying the operation in this State of the interstate order; and
(b)a reference to cancelling a final order is to be read as a reference to making an order cancelling the registration of the interstate order.
(2)In proceedings for a breach, committed in this State, of a registered order no proof is required of —
(a)the making of the interstate order or of a variation of it that operates in this State under section 78; or
(b)the service of such an order or variation on the person who is bound by the order.
[Section 77 amended: No. 11 of 1999 s. 5; No. 49 of 2016 s. 83.]
78.Variation or cancellation in another State or Territory
(1)If —
(a)a registered order is varied by a court in the State or Territory in which it was made; and
(b)notice of the variation is given to the registrar by an officer of that court,
the variation operates in this State as if the interstate order, as varied, had been registered under section 76 on the day on which the registrar received the notice.
(2)If —
(a)a registered order is cancelled by a court in the State or Territory in which it was made; and
(b)notice of the cancellation is given to the registrar by an officer of that court,
the registration in this State of the order is cancelled from the day on which the registrar received the notice.
(3)If the registrar receives notice of the variation or cancellation of a registered order, the registrar is to notify the person who applied for registration of the order and the Commissioner of Police.
[Section 78 amended: No. 59 of 2004 s. 123.]
[Section 78. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009. See endnote 1M.]
79.Variation or cancellation in this State
If an order is made under Part 5 varying the operation in this State, or cancelling the registration, of an interstate order, the registrar of the court that made the order of variation or cancellation must —
(a)notify the applicant for registration of the original order, unless the registrar knows that the applicant is already aware of the variation or cancellation; and
(b)notify the Commissioner of Police and give the Commissioner a copy of the order of variation or cancellation; and
(c)alter the registration accordingly.
[Section 79 inserted: No. 11 of 1999 s. 6; amended: No. 59 of 2004 s. 123.]
[79AA. 1MModifications to be applied in order to give effect to Cross‑border Justice Act 2008: section inserted 1 Nov 2009. See endnote 1M.]
Part 7A — Foreign restraining orders
[Heading inserted: No. 11 of 1999 s. 7.]
79A.Recognition of foreign restraining orders
A foreign restraining order that is in force under a corresponding law of New Zealand or a country prescribed in the regulations may be registered and enforced under this Part.
[Section 79A inserted: No. 11 of 1999 s. 7; amended: No. 49 of 2016 s. 84.]
79B.Applying for registration of foreign restraining orders
(1)An application for registration of a foreign restraining order may be made by —
(a)the person named in the order for whose benefit the order is made; or
(b)a police officer on behalf of that person.
(1a)An application for registration of a foreign restraining order may also be made —
(a)if the person named in the order for whose benefit the order is made is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person named in the order for whose benefit the order is made is under the guardianship of a guardian (however described) appointed under the law of the foreign country, by the guardian on behalf of the person.
(2)The application is to be made to the Magistrates Court in the prescribed form referred to in section 75(2).
(3)An application need not be served on the person who is bound by the order.
[Section 79B inserted: No. 11 of 1999 s. 7; amended: No. 22 of 2000 s. 16; No. 38 of 2004 s. 52; No. 59 of 2004 s. 124; No. 49 of 2016 s. 85.]
79C.Registration of foreign restraining orders
(1)When a person applies for registration of a foreign restraining order, the registrar of the court is to register the order.
(2)The registrar must give notice of the registration —
(a)to the applicant; and
(b)where practicable, to the court that made the order.
(3)The registrar must also give notice of the registration of the order, and a copy of the order, to the Commissioner of Police.
(4)The registrar is not to give notice of the registration to the person who is bound by the order unless the applicant has made a written request for notice to be given to the person.
[Section 79C inserted: No. 11 of 1999 s. 7; amended: No. 59 of 2004 s. 123.]
(1)A registered foreign restraining order operates in this State, and this Act applies to it, as if it were an FVRO or VRO that is a final order and that was served in accordance with this Act on the day on which it was registered.
(2)Without limiting subsection (1), for the purposes of applying Part 5 to a registered foreign restraining order —
(a)a reference to varying a final order is to be read as a reference to making an order varying the operation in this State of the registered foreign restraining order; and
(b)a reference to cancelling a final order is to be read as a reference to making an order cancelling the registration of the foreign restraining order.
(3)The order operates as a final order even though an appeal against it may be pending, or it may still be subject to appeal, in the courts of the foreign country.
(4)In proceedings for a breach of the order, proof is not required —
(a)that the order was made by the foreign court; or
(b)that the order was served on the person who is bound by it.
(5)It is a defence to a charge of breaching the order for the person who is bound by the order to satisfy the court that —
(a)the order had been varied under the corresponding law of the foreign country so that the behaviour that is alleged to constitute the breach did not amount to a breach of the order as in force in the foreign country at the material time; or
(b)the order had been cancelled under the corresponding law of the foreign country and was not in force in that country at the material time.
[Section 79D inserted: No. 11 of 1999 s. 7; amended: No. 49 of 2016 s. 86.]
79E.Variation or cancellation in foreign country
(1)If the registrar of the court that registered a foreign restraining order has reasonable grounds for believing that an order varying the restraining order is in force under the corresponding law of the foreign country, the registrar is to register the variation.
(2)The variation takes effect on the day on which it is registered.
(3)If a registered foreign restraining order is cancelled by a court of the foreign country, the registration of the order is cancelled on the day on which the court of registration becomes aware of the cancellation.
(4)If a variation of a registered foreign restraining order is registered, or the order is cancelled, the registrar of the court of registration must —
(a)notify the applicant for registration of the original order, unless the registrar knows that the applicant is already aware of the variation or cancellation; and
(b)notify the Commissioner of Police and give the Commissioner a copy of the order of variation or cancellation if one is available.
[Section 79E inserted: No. 11 of 1999 s. 7; amended: No. 59 of 2004 s. 123.]
79F.Variation or cancellation in this State
If an order is made under Part 5 varying the operation in this State, or cancelling the registration, of a registered foreign restraining order, the registrar of the court that made the order of variation or cancellation must —
(a)notify the applicant for registration of the original order, unless the registrar knows that the applicant is already aware of the variation or cancellation; and
(b)notify the Commissioner of Police and give the Commissioner a copy of the order of variation or cancellation; and
(c)alter the registration accordingly.
[Section 79F inserted: No. 11 of 1999 s. 7; amended: No. 59 of 2004 s. 123.]
[Part 8 (s. 80‑84) deleted: No. 38 of 2004 s. 53.]
[Part 9 (s. 85‑90) omitted under Reprints Act 1984 s. 7(4)(e) 1.]
This is a compilation of the Restraining Orders Act 1997 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.
|
Short title |
Number and year |
Assent |
Commencement |
|
Restraining Orders Act 1997 |
19 of 1997 |
28 Aug 1997 |
s. 1 and 2: 28 Aug 1997; |
|
Family Court (Orders of Registrars) Act 1997 s. 12 |
21 of 1997 |
7 Sep 1997 |
15 Sep 1997 (see s. 2(2) and Gazette 12 Sep 1997 p. 5149) |
|
Acts Amendment and Repeal (Family Court) Act 1997 s. 36 |
41 of 1997 |
9 Dec 1997 |
26 Sep 1998 (see s. 2 and Gazette 25 Sep 1998 p. 5295) |
|
Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 62 |
10 of 1998 |
30 Apr 1998 |
30 Apr 1998 (see s. 2(1)) |
|
Restraining Orders Amendment Act 1999 |
11 of 1999 |
13 May 1999 |
13 May 1999 (see s. 2) |
|
Restraining Orders Amendment Act 2000 |
22 of 2000 |
30 Jun 2000 |
30 Jun 2000 (see s. 2) |
|
Reprint of the Restraining Orders Act 1997 as at 6 Oct 2000 (includes amendments listed above) |
|||
|
Sentencing Legislation Amendment and Repeal Act 2003 s. 90 |
50 of 2003 |
9 Jul 2003 |
15 May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445) |
|
Children and Community Services Act 2004 Sch. 2 cl. 23 |
34 of 2004 |
20 Oct 2004 |
1 Mar 2006 (see s. 2 and Gazette 14 Feb 2006 p. 695) |
|
Acts Amendment (Family and Domestic Violence) Act 2004 Pt. 2 (s. 3‑57) |
38 of 2004 |
9 Nov 2004 |
s. 3‑56: 1 Dec 2004 (see s. 2 and Gazette 26 Nov 2004 p. 5309); |
|
Acts Amendment (Court of Appeal) Act 2004 s. 37 |
45 of 2004 |
9 Nov 2004 |
1 Feb 2005 (see s. 2 and Gazette 14 Jan 2005 p. 163) |
|
Courts Legislation Amendment and Repeal Act 2004 Pt. 17 2 |
59 of 2004 (as amended by No. 2 of 2008 s. 77(3) and (4)) |
23 Nov 2004 |
Pt. 17 (other than the amendments in s. 123 (to s. 67(2)) and in s. 124 (to s. 4(a)): 1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128) |
|
Reprint 2: The Restraining Orders Act 1997 as at 5 May 2006 (includes amendments listed above) |
|||
|
Family Legislation Amendment Act 2006 Pt. 6 Div. 3 |
35 of 2006 |
4 Jul 2006 |
15 Jul 2006 (see s. 2 and Gazette 14 Jul 2006 p. 2559) |
|
Prisons and Sentencing Legislation Amendment Act 2006 Pt. 10 |
65 of 2006 |
8 Dec 2006 |
4 Apr 2007 (see s. 2 and Gazette 3 Apr 2007 p. 1491) |
|
Acts Amendment (Justice) Act 2008 Pt. 19 |
5 of 2008 |
31 Mar 2008 |
31 Oct 2008 (see s. 2(d) and Gazette 11 Jul 2008 p. 3253) |
|
Legal Profession Act 2008 s. 699 |
21 of 2008 |
27 May 2008 |
1 Mar 2009 (see s. 2(b) and Gazette 27 Feb 2009 p. 511) |
|
Criminal Law Amendment (Homicide) Act 2008 s. 37 |
29 of 2008 |
27 Jun 2008 |
1 Aug 2008 (see s. 2(d) and Gazette 22 Jul 2008 p. 3353) |
|
Reprint 3: The Restraining Orders Act 1997 as at 9 Jan 2009 (includes amendments listed above except those in the Legal Profession Act 2008) |
|||
|
Restraining Orders Amendment Act 2011 Pt. 2 |
32 of 2011 |
12 Sep 2011 |
5 May 2012 (see s. 2(b) and Gazette 4 May 2012 p. 1847) |
|
Restraining Orders Amendment Act 2013 Pt. 2 |
14 of 2013 |
4 Oct 2013 |
4 Oct 2013 (see s. 2) |
|
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Pt. 3 Div. 17 (other than s. 108, 110‑112, 114‑117, 119 and 121) |
20 of 2013 |
4 Nov 2013 |
25 Nov 2013 (see s. 2(b) and Gazette 22 Nov 2013 p. 5391) |
|
Reprint 4: The Restraining Orders Act 1997 as at 13 Mar 2015 (includes amendments listed above) |
|||
|
Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 Pt. 2 (s. 3-86) |
49 of 2016 |
29 Nov 2016 |
Pt. 2 (s. 60, 71, 73 and 76): 8 Feb 2017 (see s. 2(b) and Gazette 7 Feb 2017 p. 1157); Pt. 2 (other than s. 60, 71, 73 and 76): 1 Jul 2017 (see s. 2(b) and Gazette 7 Feb 2017 p. 1157) |
|
Domestic Violence Orders (National Recognition) Act 2017 Pt. 7 |
10 of 2017 |
8 Nov 2017 |
25 Nov 2017 (see s. 2(b) and Gazette 24 Nov 2017 p. 5671) |
|
Reprint 5: The Restraining Orders Act 1997 as at 12 Jan 2018 (includes amendments listed above) |
|||
|
Criminal Law Amendment (Intimate Images) Act 2019 Pt. 3 |
4 of 2019 |
26 Feb 2019 |
15 Apr 2019 (see s. 2(b) and Gazette 9 Apr 2019 p. 1041) |
|
Family Violence Legislation Reform (COVID-19 Response) Act 2020 Pt. 5 |
13 of 2020 |
6 Apr 2020 |
7 Apr 2020 (see s. 2(b)) |
To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.
|
Short title |
Number and year |
Assent |
Commencement |
|
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 s. 108, 110‑112, 114‑117, 119 and 121 |
20 of 2013 |
4 Nov 2013 |
To be proclaimed (see s. 2(b)) |
1MUnder the Cross-border Justice Act 2008 section 14, in order to give effect to that Act, this Act must be applied with the modifications prescribed by the Cross‑border Justice Regulations 2009 Part 3 Division 18 as if this Act had been altered in that way. If a modification is to replace or insert a numbered provision, the new provision is identified by the superscript 1M appearing after the provision number. If a modification is to replace or insert a definition, the new definition is identified by the superscript 1M appearing after the defined term.
1Part 9 contained transitional provisions relating to orders to keep the peace in force under the Justices Act 1902 when this Act came into operation.
2The Courts Legislation Amendment and Repeal Act 2004 s. 123 (the amendment to s. 67(2)) and s. 124 (the amendment to s. 4(a)) were deleted by the Criminal Law and Evidence Amendment Act 2008 s. 77(3) and (4).
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined termProvision(s)
affidavit3(1)
aid61B(1)
application3(1)
assault3(1)
authorised magistrate3(1)
authorised person3(1)
behaviour change order10I, 10M(1)
behaviour change programme10I, 10P(2)
behaviour change programme provider10I, 10P(3)
behaviour management order10I
bound person61B(1)
CEO (child welfare)3(1)
child3(1)
child welfare law50B(4)
child welfare officer3(1)
co‑licensee71(2)
Commissioner of Police3(1)
conduct agreement10H(1)
conduct agreement order3(1), 10H(1)
consent order3(1)
conviction61A(1)
corresponding law3(1)
court3(1), 10I
cyber‑stalking3(1)
distributes3(1)
earlier order32(5)
eligibility assessment interview10I, 10L(1)
eligibility assessment order10I
eligibility assessment report10I, 10L(1)
eligibility assessor10I, 10P(1)
exposed3(1), 6A(1)
family member3(1), 4(3)
family order3(1), 5(1)
family relationship4(1)
family violence3(1), 5A(1)
family violence restraining order3(1)
final order3(1)
final order hearing3(1)
firearm3(1)
firearms licence3(1)
firearms order71(1)
fix a hearing3(1)
foreign restraining order3(1)
FVRO3(2)
imagined personal relationship3(1)
inform the court66(1)
interested party70A(1)
interim order3(1)
interstate order74
intimate image3(1)
kidnapping, or depriving the liberty of3(1)
legal practitioner3(1)
mention hearing3(1)
misconduct restraining order3(1)
MRO3(2)
order61B(1)
other personal relationship4(2)
person protected3(1)
person seeking to be protected3(1)
person who is bound3(1)
personal violence3(1), 6(2)
police order3(1)
prepare and serve3(1)
prescribed form3(1)
prescribed information70A(1)
previous offences61A(2)
prisoner16A(1)
proceeding10I
proceedings under this Act3(1)
property3(1)
protected person61B(1)
Public Advocate3(1)
registered3(1)
registered order74
registrar3(1), 74
related4(2)
relevant offence61A(2)
remote communication62D(8)
representation44A(3), 53E(4)
respondent3(1), 31A, 43A(1)
responsible person71(1)
restrained person71(1)
restraining order3(1)
review date73A(1)
satisfied3(1)
senior officer62D(8)
sexual assault3(1)
specified3(1)
stalking3(1)
telephone application3(1)
telephone order3(1)
third party68(1)
under this Act70(4)
variation or cancellation order10I, 10T(1)
victim10V(2)
video link53B(4)
violence restraining order3(1)
violent personal offence63A(1A), 63B(1)
VRO3(2)
wellbeing3(1)
written reasons61A(8), 67(3A)