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2.3.3 Family violence restraining orders

Last Modified: 21-Aug-2019 Review Date: 01-Jul-2019

Purpose

Provide clear practice guidance for child protection workers about applying for a Family Violence Restraining Order (FVRO) on behalf of a child or supporting adult victims to seek FVROs that include themselves and their children.

Note: 'The Department' refers to the Department of Communities.

Practice Requirements
    
  • You must consider using powers granted under the Restraining Orders Act 1997 to apply, on behalf of the child, for a FVRO against the perpetrator if:
    • the violence is likely to escalate and the child is at risk of further abuse
    • a FVRO is considered to be a safe and suitable tool to support safety planning, and/or
    • it would decrease risk to the adult victim if the Department was the applicant for the FVRO.
  • Where the Department is involved in safety planning to respond to emotional abuse – family and domestic violence (FDV) and the adult victim decides to apply for a FVRO on behalf of herself and her child(ren), you must:
    • provide a warm referral to an appropriate support service, and
    • provide relevant information to support the FVRO application.
  • Child protection workers who witness, or who possess evidence of a breach of restraining order (protective bail, police order or FVRO) must report it to Western Australia Police (WA Police).

Note: An adult victim must never be forced or coerced to apply for a FVRO (including through a worker stating that in the absence of that person obtaining a FVRO the Department will take intervention action). 

Procedures

  • Overview
  • Supporting an adult victim to obtain a family violence restraining order
  • Applying for a family violence restraining order on behalf of a child
  • Reporting breaches of a Family Violence Restraining Order
  • Undertakings
  • Orders restraining children
  • Overview

    Family Violence Restraining Orders (FVROs) are an important tool for managing risk and increasing safety in cases of Family and Domestic Violence (FDV). Where suitable and appropriate they should be considered as a potential alternative to a protection order, when used in combination with safety planning.

    A FVRO is an order made by the court to stop a person from committing an act of abuse, breaching the peace, causing fear, damaging property or intimidating another person.  A FVRO may be made by a court if the court is satisfied that:
    1. the respondent has committed family violence against a person seeking to be protected and that respondent is likely to commit family violence against that person in the future,  or
    2. a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to believe that the respondent will commit family violence against the person seeking to be protected.

    For a definition of 'family violence' as defined by the Restraining Orders Act 1997 or a list of key terms, refer to FVRO Key Terms (also in related resources).

    A FVRO is one tool to support safety planning and risk management. You are authorised to apply for a FVRO on behalf of a child by s.18(2) of the Restraining Orders Act 1997 which states that: “an application for a violence restraining order 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…”.

    The procedures outlined in this entry are designed to support child protection workers to obtain a FVRO on behalf of a child, or to support an adult victim’s application for a FVRO. They should be read in conjunction with Chapter 2.3: Assessing emotional abuse - FDV, Safety planning for emotional abuse - FDV, and Responding to perpetrators of emotional abuse - FDV.

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    Supporting an adult victim to obtain a family violence restraining order

    Warm referral

    There are many services available to provide assistance to people seeking to obtain a FVRO. When you are involved with an adult victim of FDV who has indicated that they want to obtain a FVRO for themselves and their children, you must offer a warm referral to a specialist support service. Referral options include:

    Refer to FDV Referral Guide (in related resources).

    Providing relevant information

    You should provide relevant information to the services supporting your client to obtain a FVRO. ‘Relevant’ in this case, is any information that supports or demonstrates that an act of abuse has been committed against the persons (adult and child) seeking to be protected, and/or information that demonstrates or supports reasonable fear that an act of abuse will be committed in the future.

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    Applying for a family violence restraining order on behalf of a child

    Section 10E of the Restraining Orders Act 1997 states:

    "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."

    In what circumstances should you seek a VRO on behalf of a child?

    You should use the powers granted under s.18(2) of the Restraining Orders Act 1997 to apply for an FVRO on behalf of a child to protect them from further exposure to FDV. Consider this option if:

    • the violence is likely to escalate and the child is at risk of further harm, and/or
    • it would decrease risk to the adult victim if the Department was the applicant for the FVRO. 

    Refer to  FVRO on Behalf of Children (in related resources) for more information.

    A FVRO should be considered an opportunity to significantly contribute to a robust safety plan that reduces risk and alleviatesthe Department's concerns for a child and adult victim experiencing FDV. Seeking a FVRO on behalf of a child does not require the child to be in care, or for the case to remain open for the duration of the FVRO if the child is assessed as being safe in the adult victim’s care.

    Approval to obtain a FVRO

    The decision to apply for a FVRO on behalf of a child must be approved by a team leader with notification to the district director. Once approved, the district must notify the Child Protection Legal Unit, for their information.

    Role of the Child Protection Legal Unit

    The Child Protection Legal Unit is available to:

    • provide advice about FVRO applications (Note: the district is responsible for lodging the application and participating in the interim hearing), and
    • attend and participate in final order hearings if the interim order is contested by the respondent).

    When available, the Child Protection Legal Unit lawyer may also attend to assist with the interim hearing, depending on the circumstances of the case.

    Application process

    1.  Child protection workers should apply for a FVRO on behalf of a child in the Children’s Court. In some circumstances it may be appropriate for the application to be lodged in the Magistrates Court. There are also provisions for telephone applications which might apply in some regional locations (s.19 and s.20 of the Act).

    2.  Ccomplete the Application Form (link below). In the section ‘application details’ provide a clear and concise summary of past acts of abuse and/or likely future acts of abuse that the child has been exposed to must be provided. In the summary, clearly articulate the grounds for the application and how these meet the legislative requirements (s.10E of the Act).

    3.  lodge the Application Form with the registrar at the court and request an ex-parte hearing. Ex-parte means the respondent won’t be present. A judicial officer will hear the matter as soon as possible.  At the first hearing, you will be asked to provide evidence to support the application. You can provide this verbally or contained within an affidavit filed with the application. Note:  Practice may vary in some regional courts.

    For guidance on how to complete a FVRO application and attend court for a first hearing, refer to the following documents (in related resources):

    4.  If an interim FVRO is granted, fax the order to the police station nearest to the respondent's home.  WA Police will serve the order on the respondent, if possible within 24 hours of it being granted. The FVRO comes into effect at the time it is served on the respondent.

    Obtaining a final order

    Where a final order hearing (for example, a defended hearing) is required, you and the Department's Legal Officer (or contract solicitor) should both attend the full hearing. 

    Recording the FVRO on Assist 

    When the final order is made, record a “FVRO Alert" in Assist  (whether or not the Deaprtment is the applicant). If the FVRO has been initiated by the Department on behalf of a child, select 'Dept. initiated FVRO' in the drop down box under 'sub type' and record the alert against the children protected by the FVRO.  Save a copy of the FVRO on the case file.

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    Reporting breaches of a Family Violence Restraining Order

    Breach of a FVRO is a crime. The Criminal Investigations Act 2006 sets out that breach of a FVRO is a “serious offence” and there is a “presumption of imprisonment” for repeated breaches of an FVRO. The person responsible for committing the breach is the person bound by the order. This means that if a perpetrator is found to be in breach of a FVRO, they cannot argue that the breach was ‘consensual’ or that they were ‘invited’, as it is ultimately their responsibility to abide by the conditions.

    If you witness, or have evidence of a breach, you must report it to the WA Police. Reports can be made to the local police station or to the Victim Support Unit in your area. For contact information, refer to FDV Referral Guide (in related resources).

    Breaches are also a significant indicator of risk. Factor knowledge of a breach into ongoing assessment and safety planning processes.

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    Undertakings

    Undertakings are promises by one party (or sometimes both parties) not to behave in a particular manner. They are sometimes entered into by parties in lieu of a final FVRO.

    The conditions of an undertaking are not enforceable by police.

    The Department cautions against the use of undertakings as there are rarely any occasions in which FDV can be suitably managed in this way.

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    Orders restraining children

    For information about the Department's role in circumstances where a child under the age of 16 years is named as the respondent to a FVRO or a Police Order refer to Orders Restraining Children (in related resources).

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