How to get a restraining order | Everything you need to know

How to get a restraining order | Everything you need to know

Getting a restraining order is a serious thing both for you, and the other person involved. For anyone in a position that demands this kind of legal intervention, it’s important to know your rights, the process of obtaining a restraining order, and the implications. Here is everything you need to know about restraining orders and how to get one. 

What is a restraining order?

A restraining orders is a court order that legally protects someone from abuse or harassment from another person. A restraining order works by keeping the abuser away from you/the victim. Most typically used in cases of domestic violence and other abusive relationships, restraining orders can be used in a variety of ways to protect members of the public from ongoing predatory or abusive behaviour. A restraining order can be placed on anyone if the court deems that person to be at risk of harming or threatening to harm another person. There are two main types of restraining orders in Western Australia – a violence restraining order and a misconduct restraining order.

Violence restraining order 

This is the more serious of the two, resulting in up to 2 years of protection from a potential Respondent. A violence restraining order must satisfy certain details before it can come into effect. In cases of a family relationship, it must be based on evidence that the Respondent has/is:

  • Likely to or has in fact assaulted the victim, sexually, physically, or emotionally. 
  • Behaved in an intimidating manner
  • Kidnapped or deprived the victim’s liberty
  • Damaged victim’s property 
  • Threatened to do any of the above

A violence restraining order can also be implanted in cases outside family relationships if:

  • The Respondent has assaulted or caused personal injury 
  • Kidnapped or deprived the victim’s liberty
  • Has pursued or caused the victim to be pursued – with the intent to intimidate or does in fact intimidate
  • Has threatened any of the above

Misconduct restraining order

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This is the less serious of the two and can result in 1 year’s protection against a potential Respondent. For a successful implementation of a misconduct restraining order the court must be satisfied that the Respondent is likely to:

  • Behave in an intimidating or offensive way
  • Cause damage to personal property 
  • Behave in a way that would breach the peace

How to get a restraining orders?

If you find yourself in a situation where you are experiencing abuse at the hands of a partner or anyone else, it’s important to contact a lawyer sooner than later. Recognising a cycle of abuse is often difficult when you’re inside it. Speaking to close friends or family and getting a third opinion can help in making a judgment call on whether or not a restraining order is necessary. Below is a step by step process of how to get a restraining order:

Step 1: Speak to a qualified lawyer 

Your first port of call is to get in contact with a qualified family lawyer, a professional you trust will take on your case at an affordable and reasonable rate. This will set the wheels in motion and you will then have the support and a reference for forms and dates. This is a great help when dealing with emotionally fraught issues. 

Step 2: Attend the local magistrates court and apply

At the local magistrates court, you can fill in an application form for the appropriate order. The matter will then be listed for a hearing at the next available time. Always make use of your lawyer if you get stuck with any paperwork.

Step 3: Attend the hearing

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This is where the judge will decide on whether they have enough evidence on hand to grant an interim order. This will become permanent unless it is contested. If the matter is contested the court will put the matter up for a trial hearing and decide on the matter.

Step 4: Attend trial 

Attending trial can be a confusing time, representing yourself can also be tough. Making sure you attend is very important otherwise the matter will be dismissed. Likewise, if you are the respondent, non-attendance will result in a decision being made without you. Consulting and employing the help of lawyers through this process can be a great help and will ensure the best possible outcome for you. 

How much does a restraining order cost?

Being in a tough situation and having to file for a restraining orders comes with its own emotional and psychological trauma. As such, in Western Australia, it is free to file for a restraining order. There is no obligation to pay for the respondent’s legal costs under any circumstances or in any outcome. Costs can accrue when employing the assistance of a lawyer, but will also increase your chances of a better outcome.

 

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