BUTLERS

Family Violence Restraining Orders (“FVRO”) or Violence Restraining Orders (“VRO”) are an Order made by the Court to protect an Applicant from someone who commits family violence or personal violence against them, by placing restrictions on the Respondent.

The two most common types of restraining orders are the Violence Restraining Order ("VRO") and the Family Violence Restraining Order ("FVRO").

FVRO

FVRO’s seek to protect family members from family violence.  The term family violence covers physical acts, sexual abuse, emotional and/or psychological abuse and financial abuse.  Family members may include people who share an intimate personal relationship, parents and children (including children of an intimate partner), relatives by birth, marriage or adoption and people you treat like a family member (such as a carer or guardian).

VRO’s

VRO’s seek to protect a person from personal violence being perpetrated by another person whom he or she is not in a family relationship with. Personal violence can include assaulting, kidnapping, stalking or threatening.

Domestic violence includes emotional, physical, sexual and psychological abuse. If your partner, ex-partner or a family member hurts or threatens you, it is Domestic violence.

An act of family and domestic violence includes assaults, injuries, threats, stalking, damaging property, hurting animals or pets, and acting in an ongoing intimidating, offensive or emotionally abusive manner.

Physical violence, stalking and threats of violence are crimes and may result in criminal records.

Financial abuse is a form of family violence. It may include withholding money, controlling the household spending, refusing to allow you to participate in financial decisions and refusing to provide financial support.

These restrictions may include prohibiting the Respondent from:

1. Communicating with the Applicant;
2. Approaching the Applicant, their residence or place of work;
3. Distributing photographs of the Applicant; and/or
4. Denigrating and harassing the Applicant.

An Application for Restraining Order may be made by the person seeking to be protected, or by a police officer on behalf of the person seeking to be protected. The process includes the filing of an Application and Affidavit with the Magistrates Court (though in some instances, this may be the Children’s Court). An Applicant may request that the Application be heard without the Respondent being present, or notified in advance of the first (Interim) Hearing.

If a Magistrate is satisfied at the interim Hearing that an interim Order should be made, the Order does not take effect until it is served on the Respondent. The Respondent then has 21 days from the date they were served to object to the Order being made final or agree to the Order being made final. If they do nothing, the Order is automatically made final after 21 days.

If the Respondent objects, the matter may be listed for a Mention Hearing. Both parties are required to attend at the Mention Hearing. At this Hearing, the Magistrate will require the parties to advise whether any agreements have been reached, whether the Applicant is pursuing the Final Order and if the matter needs to be programmed to a Final Order Hearing.

If the Application is programmed to a Final Order Hearing, both parties are required to attend with any witnesses to support their position. Both parties will have an opportunity to provide their evidence to the Court. The Magistrate will then decide whether to make the Order final.

If the Order is made final, the Respondent must comply with the restrictions. If they breach the restrictions, it is a criminal offence.

To apply for a Restraining Order, you either lodge your Application in the Children’s Court, if you want a Restraining Order against someone under 18 years of age, or you otherwise apply to the Magistrates Court.

You can either apply in person or online through an approved legal service provider. To apply in person, you need an Application form and an Affidavit. When you apply online, your Application automatically becomes your Affidavit when you declare the information.

After you lodge your Application, you will get a date and time for the first Hearing, this could be the same day.

If the Respondent is not represented and wishes to cross-examine the Applicant, the Court can order that the Respondent is not entitled to ask questions directly and that any questions need to be directed at a judicial officer or approved person.

Sometimes a VRO is used to remove a person from the former matrimonial home in Family Law Proceedings.  We do not recommend VRO's for this purpose and recommend that any person applying for a VRO in a Family Law proceeding, should contact one of our experienced family Lawyers to receive further advice.  If a VRO has attempted to be obtained inappropriately, the Court can award costs against the applicant.

Sometimes, a party may feel threatened or afraid of the respondent, however, it may not warrant the Court granting a VRO.  That person may still be able to apply to have the respondent restrained from entering the former matrimonial home.  Such an application is brought in the Family Court and different powers apply. 

If after being served, the Respondent has objected to the making of a Final Order, the parties may still resolve the matter by way of agreement, without the need for a Final Hearing.

Undertakings

An Undertaking is a legal promise made by the Respondent to do, or not do certain things. 

Giving an Undertaking to the Court does not mean the party bound agrees that they have done anything wrong and their use can be for a different of different reasons, for instance where there is little admissible evidence that would result in a Final Order being made or, where a Final Order may impact the Respondent’s employment.   

However, an Undertaking is not automatically enforceable by the police and there is no jurisdiction for the Magistrates Court to impose penalties in respect of breaching an Undertaking.  Rather, the breach would simply support a second Application for an Order.

Consent Orders and Conduct Agreement Orders

A Conduct Agreement or Consent Order can be made where there is agreement between the parties which imposes restraints on the lawful activities and behaviour of the Respondent, as the Court considers appropriate.

A Conduct Agreement or Consent Order is not a Restraining Order but is taken to be a Restraining Order for the purposes of the Relevant legislation. Acting in contravention of the Conduct Agreement or Consent Order is unlawful. A key difference between a Conduct Agreement and an Undertaking is that the Conduct Agreement is enforceable, with the same breach and enforcement processes as a restraining Order.

Applying for a Restraining Order can be confusing and stressful. Similarly, being served with an interim FVRO and VRO can be daunting, particularly when the allegations are false.  At Butlers, we realise the difficulties you may be facing and ensure you have a clear understanding of the process and the potential outcome specific to your situation. 

If you have been served with an Interim VRO and want to dispute it, then you must file an objection within the prescribed time.  The case is then either listed for mention or for a final hearing.  In any event, you are bound by the Interim VRO until such time as the Court has determined your objection.  Final restraining orders are generally imposed for a period of two years.  However, this may vary at the discretion of the court.  Contact one of our VRO Lawyers to get advice on your options.

Notice of a VRO does not go on the person bound's criminal record.  However, if a person bound by a VRO breaches that order, they may be charged with the criminal offence of breaching a violence restraining order. A conviction for breach of a VRO will go on your criminal record.

Breaching a VRO has very serious consequences.  A person who has breached a VRO has committed a criminal offence and is liable to a fine of $6,000.00 or 2 years imprisonment, or both.  A Persons bound must READ THE ORDER CAREFULLY.

If the person bound does something that the restraining order says they can't do, they are "breaching" the order.

For example, if a VRO says the person bound is not allowed to communicate with you, they must not:

• visit you
• call you on the phone
• send SMS or text messages to you
• send emails to you
• send letters to you
• send presents to you
• send messages to you, even through friends, family or your children.

If you require further advice or representation on breaching VRO's contact now us as early advice is vital.

Since the legislative changes on 1 July 2017, parties to FVRO proceedings have the option available to them of entering into a Conduct Agreement, if they consider it to be the right option for them, in all the circumstances.

A Conduct Agreement can be made where there is an agreement between the parties which imposes restraints on the lawful activities and behaviour of the Respondent, as the Court considers appropriate, to prevent the Respondent committing family violence against the Applicant or if the person seeking to be protected is a child, exposing the child to family violence committed by the Respondent, or behaving in a manner that could reasonably be expected to cause the Applicant to apprehend that they will have family violence committed against them.

The term exposed to family violence (or personal violence) is defined as being if the child sees or hears the violence or otherwise experiences the effects of the violence. Examples of where a child is exposed are where a child may overhear a death threat, where a child is a witness to an assault and other such examples outlined above.

A Conduct Agreement can seek to restrain the Respondent from doing all or any of the following:

1. Being on, or near, the premises where the person seeking to be protected lives or works;
2. Being on, or near, specified premises or in a specified locality or place;
3. Approaching within a specified distance of the person seeking to be protected;
4. Stalking or cyberstalking the person seeking to be protected;
5. Communicating, or attempting to communicate (by whatever means) with the person seeking to be protected;
6. 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;
7. Distributing or publishing, or threatening to distribute or publish, intimate personal images of the person seeking to be protected;
   Causing or allowing another person to engage in conduct of a type referred to above.

A Conduct Agreement is not an FVRO but is taken to be an FVRO for the purposes of the Act.  The Conduct Agreement can inform the Respondent that acting in contravention of the Conduct Agreement is unlawful.

A key difference between a Conduct Agreement and an Undertaking is that the Conduct Agreement is enforceable, with the same breach and enforcement processes as an FVRO.

Some advantages, when considering a Conduct Agreement, are:

1. The Conduct Agreement Order is made by the Court without being satisfied that there are grounds for making an FVRO in the same terms, meaning that the evidence is not tested at a final order hearing.
2. The Conduct Agreement Order is enforceable, with the same breach and enforcement processes as an FVRO.
3. The parties do not incur the emotional distress and financial burden of having to prepare for an appearance at a final order hearing.
4. The Court has the power to order a Respondent

Of course, the safety of an individual is paramount and no person should enter into a Conduct Agreement unless they consider that a Conduct Agreement Order will make them feel safe and sufficiently protected.

The changes to the legislation surrounding restraining orders are complex and can be confusing.  If you would like further information or advice in relation to restraining orders, please contact the team at Butlers Lawyers.