FVRO’s (Family Violence Restraining Orders) vs Protective Orders

Rebecca Ward
Senior Associate
Barrister and Solicitor

Posted on 23/10/2019, Last Updated on 28/10/2019

 

60–Second Summary

The end of a relationship often presents separating spouses and their children with emotional upheaval, as well as various financial and practical difficulties. This is made more complex and emotionally disturbing when there are issues of family violence.

In urgent cases of family violence, it is appropriate that an application be made in the Magistrates Court for a Family Violence Restraining Order (“FVRO”). 

There are, however, other circumstances where it is appropriate to file an application in the Family Court, seeking protective orders and other orders surrounding the children of the relationship (rather than applying for an FVRO). 

It is important to obtain legal advice as to the appropriate course of action in your particular case.

 

What is an FVRO?

An FVRO is a Court Order made against a family member (“the Respondent”) designed to stop violence or threats of violence; or to prevent behaviour that coerces, controls, or causes a family member (“the Protected Party”) to be fearful.

If the Police are called to a situation involving family violence, an ‘on the spot’ FVRO can be issued (called a “Police Order”) for a period of up to 72 hours. However, if the Protected Party needs the protection of an ongoing FVRO, they will need to apply to the Magistrates Court.  

An application can be made for an FVRO against a Respondent with whom the Protected Party has been in a family relationship.

The definition of “family relationship”’ in Section 4 of the Restraining Orders Act 1997 (WA) (“RO Act”) is broad and covers current and former spouses, partners, siblings, children, parents, grandparents, step-family, as well as other relatives and members enjoying intimate or family–type relationships. A ‘family member’ is someone who is in a family relationship with that other person.  

All FVROs made since 25 November 2017 are recognised nationwide (which means that a person is “protected” in all States of Australia).  An application can be made to the Magistrates Court to have an Order which was made prior to 25 November 2017 declared’ to be a nationally recognised Order.

 

Meaning of ‘Family Violence’

Family violence” includes not just physical violence, but also involves financial, psychological or emotional abuse.

 

Where a family member is in immediate danger or risk of harm, they ought to:

  • call the Police (000);
  • call the Legal Aid Domestic Violence Unit (1300 650 579);
  • look into accommodation options (such as a Refuge);
  • obtain legal advice about obtaining an FVRO;
  • engage a domestic violence counsellor.  

The RO Act defines ‘family violence’ at Section 5A (which is of relevance when an application is made to a Magistrate for an FVRO) to include violence and threats of violence by someone towards a family member; any behaviour that coerces or controls another family member; or any behaviour that causes them to be fearful. This section also provides examples of behaviour which constitutes family violence, namely:

  • Assault or sexual assault, or threats to harm, 
  • Stalking and cyber-stalking, and repeatedly sending unwanted and offensive text messages, emails or other messages via social media (which includes threats to share or the sharing of intimate images).
  • Repeated derogatory remarks.
  • Intentionally damaging or destroying property.
  • Intentionally causing death or injury to a family pet.
  • Preventing access to money needed to meet reasonable living expenses.
  • Preventing connections with other family members, friends or culture.
  • Holding a family member against their will.
  • Causing a child to be exposed to any such behaviour.

 

A definition of ‘family violence’ is also provided in Section 4AB(1) of the Family Law Act 1975 (Cth) (for married couples) and Section 9A of the Family Court Act 1997 (WA) (for de facto couples) which becomes relevant when the Family Court is asked to make orders protecting a spouse and/or the children. This definition is couched in similar terms as the RO Act

For the purpose of this article, we refer only to the Family Law Act (“FL Act”), although “mirror” provisions exist for de facto couples. 

 

Section 4AB of the FL Act provides examples of behaviour which constitutes “family violence” and defines a child as having been “exposed to family violence” (in the same terms as the RO Act).

Section 4AB(4) of the FL Act  provides examples of situations that may also constitute such exposure to family violence: 

  • Seeing or overhearing threats of death or personal injury to a family member.
  • Seeing an assault of a family member.
  • Otherwise experiencing the effects of violence by comforting or giving help to a person who has been assaulted; cleaning up after property has been damaged; or being present when Police or Ambulance Officers attend a violent incident.

 

FVRO Applications to the Magistrates Court

If there has been family violence, a risk of family violence or any reason to fear family violence, then the Magistrates Court can make an FVRO to protect that person against such family violence.  

If there has been exposure of a child to family violence (and they are likely to be exposed again) or if there are reasonable grounds to fear that the child will be exposed to family violence, the Magistrates Court can also make an FVRO to help protect the child.

Section 10D of the RO Act provides that a Court may make an FVRO if it is satisfied that the Respondent has committed family violence and is likely to commit further family violence against that person in the future; or if the person seeking to be protected has reasonable grounds to fear that the Respondent will commit family violence.

Section 10E of the RO Act provides that an FVRO may be made for the benefit of a child if the Court is satisfied that the child has been exposed to family violence and the child is likely to be further exposed, or there are reasonable grounds to believe that the child will be exposed to family violence.

 

Section 10F of the RO Act sets out what the Magistrates Court is to have regard to when considering whether to make an FVRO, which includes the following:

  • The need to ensure protection from family violence.
  • The need to prevent behaviour that could reasonably be expected to cause the belief that they will have family violence committed against them.
  • The need to ensure the well-being of children by protecting them from family violence, or from behaviour that could reasonably be expected to cause fear of family violence or of exposure to family violence.
  • Any orders made by the Family Court.

 

Applications to the Family Court

When matters are not so urgent as to require an FVRO, but yet there are protective concerns and issues concerning the children that need to be resolved, an application to the Family Court may be the more appropriate course of action.

 

Restrictions and Conditions on FVRO’s

There is flexibility in shaping the terms of an FVRO to suit the particular situation. For example, provision can be made for

  • a level of contact between the parties, or between the Respondent and the children;
  • the Respondent being permitted to contact the protected party in certain ways or for certain reasons (for example, to arrange time with the children, or to relay medical information concerning the children);
  • the Respondent being permitted to attend the family home to collect their personal items in the presence of a Police Officer.  

 

If there are existing Family Court Orders, the terms of the FVRO must be consistent with these Orders (unless the Magistrate considering the FVRO elects to temporarily suspend the Family Court Orders).

Otherwise, an FVRO can set out conditions which stop the Respondent from doing certain things, for example coming within a certain distance of the protected person; being at or near a certain place; contacting or trying to communicate with the protected person in any way (e.g. text messages, emails, social media, giving messages through the children or a third party). 

Any breaches of these restrictions may result in the Respondent being charged with a criminal offence of breaching an FVRO (which will be recorded on their criminal record and result in fines of up to $6,000 and/or imprisonment of up to two years).

An interim FVRO will remain in place until it is cancelled, dismissed or becomes final.  If not varied or cancelled, a final FVRO usually remains in place for two years.

 

When is it appropriate to seek Family Court involvement?

Obtaining an FVRO is not the only available option when there are concerns about family violence. Where there is an absence of immediate risk, the appropriate course of action may, instead, be to file an application in the Family Court.  

When making parenting orders that are in the best interests of children, the Family Court is required to give priority to the need to protect children from experiencing or being exposed to abuse, neglect or family violence. The Family Court can do so by ordering protective injunctions, both in relation to the children and the principal caregiver.

The Family Court has a close working relationship with the Department of Communities. If allegations or risk of family violence, abuse or neglect are raised, the Department will become involved in the proceedings. An Independent Children’s Lawyer may also be appointed to guide the Court as to the best interests of the children, or there may be the appointment of a Single Expert Witness to investigate the allegations of family violence or child abuse and to make recommendations.

If there are issues of family violence the requirement to attend Family Dispute Resolution (a form of mediation) before starting a case for parenting Orders in the Family Court may be dispensed with.

Unlike the Magistrates Court, the Family Court is better equipped to address what is best for the children. For example, the Court might order that the children spend minimal time with the other parent; or that such time be supervised; or that time be spent with the other parent in a public place, or that the other parent undergo counselling for family violence or attend a parenting course.  

If Family Court proceedings are commenced, the Court must be told about any FVROs that involve either party, the children, or any person relevant to the Family Court case.  

Parenting Orders in the Family Court will usually override an FVRO if there are any inconsistencies between the two. An Application can also later be made to change the terms of a FVRO to make it consistent with Orders made by the Family Court.

The Family Court has processes to keep parties safe when attending for hearings.  For example, making Orders for separate entrance and exit points; separate interviews and waiting areas; and appearances in Court using telephone or video link-ups.

 

Key Takeaways

  • If your gut instinct is telling you that you need to keep yourself and/or your children safe from immediate harm, then – after calling the Police – applying for an FVRO is important.
  • Otherwise, obtain legal advice as to whether it is appropriate to issue proceedings in the Magistrates Court for an FVRO, or in the Family Court for protective injunctions.
  • If there is an immediate risk of family violence and an FVRO is being sought, give close thought to the need to make provision within the terms of the FVRO for the children to spend time with the Respondent (handover can be arranged through a third person).
  • If there is no urgent need for an FVRO – and whilst it might seem like the ”easier option” to apply for a FVRO than to seek assistance from the Family Court – invariably the stress, inconvenience, delay and legal fees in having to deal with proceedings in both the Magistrates and Family Court will be significant.

 

General

If you are seeking more information about the need or otherwise to apply for a FVRO or to commence proceedings in the Family Court, please give DS Family Law a call on (08) 9486 1766 to arrange an initial consultation.

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