At the beginning of this year, the Restraining Orders Act 1997 (WA) (‘ROA’) was amended. We have outlined these changes below, however, nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613
Restraining Orders Act 1997 (WA) Amendments
The Restraining Orders Act 1997 (WA) (‘ROA’) is the governing legislation in relation to family violence restraining orders (‘FVRO’). It has since been amended by Part 6 of the Family Violence Legislation Reform Act 2020 (‘the Reform Act’). The amendments came into effect on 1 January 2021. Amongst other minor amendments to the ROA, the Reform Act made some significant amendments such as the inclusion of the prohibition of the use of explosives in addition to firearms; and procedural rules for conferences.
Before delving further, it is pertinent to note that matters involving restraining orders application remain under civil jurisdiction. A restraining order matter only spills into the criminal jurisdiction when a restraining order has been breached. As such, the standard of proof for restraining order applications is on the ‘balance of probabilities, in contrast to the more stringent criminal standard of ‘beyond a reasonable doubt’.
Inclusion of Explosives Orders
The amended ROA now requires courts to consider whether it should also include a restraint prohibiting the person bound by the order from possessing any explosives; or obtaining or possessing an explosives licence, when making an FVRO or VRO. If the court deems that a restraint prohibiting the possession of explosives and/or licence is necessary, it may still vary the conditions as it thinks fit. This may be a relevant consideration in matters where the person bound is employed in mining or military occupations which may require the use of explosives whilst at work. With the inclusion of this provision, courts must now consider the prohibition of explosives, in addition to firearms.
The parliament has also introduced provisions to govern conference procedures under Part 5A of the ROA. Circumstances, where a ‘special conference’ can be called for, as set out under s 49D(1)(a) of the ROA. Conferences are held to provide a procedure through which an appropriate outcome to the proceedings may be achieved without parties being together during the conference. The amendment also covers measures that courts must ensure when conducting the conference. Most pertinently, evidence of anything said or done in the course of a conference is inadmissible in civil proceedings before a court except by consent of all parties to the proceedings.
The inclusion of the above amendment is intended that conferencing will replace appropriate mention and final order hearings before a Magistrate where a respondent objects to an interim order or where a party has applied to vary or cancel existing orders. The parliament’s aim of the conference is to reduce difficulty and trauma for victims obtaining restraining orders. Implementation of conferencing procedure also ensures that applicants are protected from the risk of delay as registrars have been put in charge of the procedure.
The above amendments are just examples of the many amendments made as part of the parliament’s efforts to reform family violence legislation.
Feel free to contact our office if you need any legal advice or help in applying for a restraining order or have a Final Order Hearing. Call our office on: +61 8 6323 8697
If you have been accused of breaching a restraining order then let a lawyer from Kean Legal Barristers & Solicitors can help you. Call our office to set an appointment today: +61 8 6323 8697