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Information for Respondents in Violence and Family Violence Restraining Order (“VRO” and “FVRO”) Proceedings
How to object to a VRO or FVRO
An objection form is attached to the back of the Restraining Order served on the Person Bound. The objection must be completed, signed and filed at the Court Registry which issued the Order within 21-days of the order being served. When lodging the objection form, Person Bound is entitled to complete a Form 1 application for a copy of the Applicant’s written application form, sworn statement (Affidavit) and a transcript of the hearing in which the interim order was granted. These materials are available to the Person Bound at no cost.
It is important that the Person Bound apply for these materials as soon as possible in order to gain an understanding of the allegations which the Applicant has made against them. You should either send these documents to a lawyer prior to meeting with them or bring them along to the initial conference. This ensures the lawyer is well informed to give you legal advice about the matter.
What happens if no objection is lodged?
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.
If an objection is not lodged within 21-days, can a Respondent apply to set aside the final order?
You can apply for the Court to set aside the final order if there was “reasonable cause” for your failure to lodge your objection within 21-days.
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. 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.
Can a VRO or FVRO be made on conditions which do not require the Respondent to surrender their firearms/firearms licence?
An interim or final order FVRO or VRO must contain a firearms prohibition unless the court is satisfied that the Applicant must access firearms in the course of their employment and that granting access to firearms will not endanger the Applicant.
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.
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. This process is a significant forensic advantage for the applicant and disadvantage for the respondent as the process gives the applicant additional time to formulate an answer before responding.
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.
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.
Is a Respondent who is successful at trial entitled to recover legal costs?
A successful Respondent/Person Bound is only entitled to recover costs if the court is satisfied that the Application was “frivolous or vexatious.” The Courts have interpreted frivolous as meaning “groundless” or “utterly lacking merit”). Vexatious means an “abuse of process”, “brought for an ulterior or collateral purpose” or “conducted in a manner deliberately calculated to maximise inconvenience, expense, delay and/or embarrassment”The amount of costs awarded is at the discretion of the Court.
Is a respondent able to apply to vary or cancel an Interim or Final VRO or FVRO?
You can apply to vary an interim order on the basis that the order is causing unnecessary and excessive hardship. This ground cannot be relied upon if the Order is a final order. Excessive hardship means hardship of an exceptional and oppressive character, hardship that can be remedied without entirely negating the effect of the interim order. This may apply for example where the Respondent is excluded from their primary residence, despite the Applicant residing elsewhere or where the Respondent is excluded entirely from their place of work, where appropriate conditions could enable the Respondent to attend tehri place of work and ensure the safety of the Applicant.
The other grounds for a respondent to apply to vary or cancel an order are firstly, a substantial change of circumstances. For example, where the Person Protected by the order has permanently relocated overseas. Secondly, if the Person Protected has persistently induced the person protected to breach the order. The Respondent needs to satisfy the Court that the Person Protected has repeatedly sought to induce them to breach the order for example by repeatedly telephoning, messaging and/or approaching the Person Protected.
An application to vary or cancel an order is heard by a Court in the absence of the Person Protected, for the purpose of the Court determining whether the respondent should be granted leave to continue with the application. If successful, the Person Protected by the order is summonsed to appear before the Court and respond to the application.
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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