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Information for Applicants in Violence and Family Violence Restraining Order (“VRO” and “FVRO”) Proceedings
How to apply for a VRO or FVRO
You must lodge an Application form outlining your personal details and the personal details of the person against whom you are seeking a VRO or FVRO and briefly giving reasons for your application. The person against whom you are seeking an order needs to have committed family violence or personal violence (see definitions on Violence Restraining Orders and Family Violence Restraining Orders).
The application should be supported by a sworn statement of evidence, which is called a sworn Affidavit. A Justice of the Peace or lawyer must witness you swear or affirm the affidavit is true and correct. This statement must outline the most recent instances of personal violence or family violence which have led you to apply for the order and should address why you believe the person is likely to engage in similar behaviour in future unless restrained by an order.
You need to file your application and statement personally at your local court registry. You will need to show photo ID. There is no filing fee. If the application is filed in early morning, it will be heard by a Magistrate the same day, if it is filed late in the day, it will likely be heard on the next business day.
Will the person I am seeking an order against be present when my application is dealt with in Court?
You can elect to have the application heard in the absence of the person against whom you are seeking the order. Most applications are heard “ex parte”, meaning in the absence of the other party.
What happens once an Application is lodged?
Your Application will be listed before a Magistrate or two Justices of the Peace. You will be required to give sworn evidence in support of your application. You will be able to tender the application form and affidavit during you evidence. You will be asked to clarify or expand upon the information provided in your affidavit. If you have any photographs, videos, text message, police report numbers etc, you should make reference to this evidence during your evidence and bring a copy of the evidence to Court with you. You may engage a lawyer to assist you with the preparing your application and at the hearing of your application. This will ensure your case is put to the Court persuasively.
Following your evidence the court will decide whether to grant your Order. If you are legally represented, the court will hear submissions from your lawyer.
The court must make an “interim” VRO if the Court is satisfied, based your evidence, that the person from whom you are seeking protection has:
i) committed personal violence in a VRO application or family violence in FVRO application and is likely to again do so again, or
ii) you have a reasonable grounds to believe that the person will commit family violence or personal violence against you; and
iii) there are no special circumstances which would make an Order inappropriate
If the court is not satisfied that the grounds are met, the court may decide to either summons to other party to appear and adjourn the matter to another date, or may dismiss your application.
What happens next once Court grants an “interim” VRO/FVRO?
If the Court grants a VRO or FVRO at the hearing of your application, the Police must serve the Order on the applicant. Service is usually carried out in person, however if the person is likely to avoid service, the court can order substituted service via email or text message. Once served, the person bound by the order has an opportunity to object to the order, within 21-days of being served, before the order becomes final. This is why the initial order is referred to as an interim VRO or FVRO.
What happens if the Person Bound does not object to the Order?
The order automatically becomes a final order VRO or FVRO. The duration of the order will is specified in the interim order, usually the order is in effect for 2 years from the date of service. You are not required to make any further appearance.
What happens once an objection to a VRO or FVRO is lodged?
The Court will need hold a trial to determine whether the applicant satisfies the grounds for a VRO or FVRO before a final order can be granted. However, the interim Order will remain in force until the matter is tried. Generally before the matter is listed for a trial, the Court will summons both parties to appear at a Directions Hearing to determine whether the matter can be resolved by negotiation. If the application is unable to be resolved by negotiation, it will be listed for trial. The trial will generally take place between 3 – 9 months from the date of the Directions Hearing. The delay will be greater for trials exceeding 1-day.
What are the options for resolving a VRO or FVRO without the need for a trial?
An FVRO application may be resolved by the person bound consenting to a Conduct Agreement Order without making any admission of wrongdoing. A Conduct Agreement has exactly the same legal effect as an FVRO, it is a criminal offence to breach the Conduct Agreement which carries the same penalty as breaching an Order. The reasons that a Person Bound by an order may decide to consent to a Conduct Agreement without making any admission are:
i) to avoid the stress, inconvenience, uncertainty and expense of a trial,
ii) the terms of the Conduct Agreement can be negotiated, subject to agreement by the parties,
iii) A Conduct Agreement Order does not carry the same loaded language and perceived stigma as an FVRO.
A VRO application cannot be resolved by Conduct Agreement, the law does not allow for this. Instead the Person Bound may, without admission of wrongdoing, consent to a final order VRO. Alternatively, the Person Bound may offer to be bound by a Misconduct Restraining Order (“MRO”). Whereas as Conduct agreement is only available in an FVRO application, an MRO is only available in a VRO application. An MRO is generally for a duration of 12 months rather than 2 years. While breaching an MRO is a criminal offence, it is significantly less serious than breaching a VRO/MRO/Conduct Agreement. The maximum penalty is a fine of $1000.
A FVRO or VRO may also resolve by an Undertaking. An undertaking is a written promise to the Court not to breach the conditions of the Undertaking, which are generally similar to the conditions of an FVRO or VRO. An undertaking can unilateral, meaning that it is only binding on one party or it can be mutual, meaning it is binding on both parties. There are no consequences to breaching an Undertaking, it is not a criminal offence. However, the Person Protected by the Undertaking is able to apply for a restraining order on the basis of the breach. The fact that an Undertaking has been breached will bolster their case for a final order.
Rarely the Applicant will decide to withdraw their application prior to trial. Where this occurs, the interim order is cancelled an the application is dismissed. No further Court hearing is required. The Applicant generally only withdraws if they are persuaded their application will not succeed at trial based on evidence that the respondent will lead or where the Applicant wishes to reconcile with the Person Bound.
Usually if the Application resolves by negotiation through one of the above mechanisms, the court won’t make any order for legal costs. This means each party is responsible for their own legal costs.
What is involved in preparing for trial?
Your lawyer will ask you to prepare a chronology of the relationship, addressing in detail the grounds for the application. It is best you do this soon after the matter is listed for trial to ensure events are fresh in your mind and send it to your lawyer once completed. You will also need to gather documentary evidence such as text messages, emails, phone records, photos, videos and provide these to your lawyer prior to the lawyer meeting with you to prepare your matter for trial. Any documentary evidence that is held by third parties, such as hospital records or Police records, will need to be summonsed through the Court. You should have your potential witnesses send your lawyer directly an outline of their recollection of what they witnessed.
Approximately 1-month prior to trial, your lawyer will meet with you to prepare a statement of the evidence which you intend to give at trial, known as a “proof of evidence”. Your lawyer will also obtain proofs of evidence from your witnesses.
Is it possible to apply to cancel an interim or final VRO or FVRO?
The Applicant and Person Protected by an order can apply to cancel an interim or final Order. The court will only cancel the order if satisfied that the Applicant has not been inappropriately pressured to cancel the order.
What is the process at trial (Final Order Hearing)?
The trial opens with each party having the opportunity to give an outline of their case. The Applicant is often required to provide an opening address because the Applicant brings the case and bears the onus of proof. The Applicant must satisfy the court that their case has a reasonable prospect of succeeding if proved by the evidence.
While in a VRO Application the strict rules of evidence apply, in an FVRO application, the Court may inform itself as it thinks fit. This means that, for example, the parties to an FVRO application can lead hearsay evidence, which would be inadmissible under the rules of evidence.
Following opening addresses, the Applicant gives evidence first and is then cross-examined by the Respondent their solicitor. In an Application for an FVRO (but not a VRO) the person bound cannot put their questions directly to the Applicant. Questions must be put through the Magistrate. Following cross-examination, each witness at trial is given the opportunity to clarify matters arising in cross-examination, this is known as “re-examination”. Each of the Applicant’s witnesses then gives evidence in turn, following the same procedure.
The Respondent must then make an election as to whether to give evidence. If they do give evidence, they are then cross-examined by the applicant or the Applicant’s lawyer. Each of their witnesses then follows the same process.The Court then hears closing submissions from each party on the findings that the Court should make, the ultimate question is whether the Applicant has established, on the balance of probabilities, grounds for a Final Order. (see section
The Magistrate will typically adjourn the matter for a short period before delivering their judgment.
Is an Applicant required to sit in Court with the Person Bound during the trial?
If you are anxious or fearful about sharing court room with the Person Bound, you can apply to the Court to be declared a “special witness”. This permits you to participate in the trial and give your evidence from a remote witness room via an audio-visual link. In order to be declared a special witness, an Applicant must provide written evidence from a doctor, psychologist or other qualified person to the effect that they are likely to be unable to participate in proceedings or give evidence if required to share the courtroom with the person bound.
Can Family Court materials be used in FVRO proceedings?
Transcripts, evidence, reports and other materials produced in Family Court proceedings cannot be used in restraining order proceedings unless the Family Court grants leave. Leave can be obtained by way of making a Harman Application to the Family Court. It is an offence to use or disclose the materials without leave of the Family Court.
If the Order is granted after trial, how long will it remain in effect and on what conditions?
Generally an order is made for 2 years from the date of service, however the Court has a discretion to make the order for a longer or shorter period. The conditions of the Final Order may differ from the interim order. If the Applicant is successful at trial. The Court will invite submissions from the parties on both the duration and the conditions of the final order.
Can the duration of an Order be extended?
You can apply to extend the duration of an Order provided that the application is made and is served on the Respondent before the Order has expired. Once an application to extend the order is filed and served, the Order will not expire until the Respondent either consents to the extension or the application is dealt with at a trial.
Is the successful Applicant entitled to recover costs from the other party?
An Applicant is entitled to costs if they are successful. The Applicant will not necessarily be granted their costs in full. The amount of costs awarded is at the discretion of the Court.
Contact Andrews Legal
Our defence lawyers are highly experienced and specialise exclusively in criminal law. If you have been charged with breaching a VRO, FVRO or MRO, arrange for an initial consultation with one of our defence lawyers in Perth by contacting us at Andrews Legal today on (08) 9221 2991.
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