Family Violence Restraining Orders

13 September, 2021
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Family Violence Restraining Orders (FVROs) are orders made by the Court (either the Magistrate’s Court or the Children’s Court) that restrain a person (the Respondent or Person Bound) from engaging in specified behaviours against another person (the Applicant or Person Protected).

Application Process

To obtain an FVRO, the Applicant must file an application and affidavit with the appropriate Court. The matter will then be listed for a hearing in the Respondent’s absence. The judicial officer will hear the Applicant’s evidence and make a decision as to whether it is appropriate for an interim order to be made.

If the interim order is made, it will be served on the Respondent by the Police. The Respondent is bound by the order once it has been served, which means that if a breach is committed, criminal charges may be laid. Breaching an FVRO is a serious offence.

Objecting

If the Respondent does not file an objection, then the FVRO will be made final and the matter will be finalised.

If the Respondent wishes to object to the FVRO, they must file the objection within 21 days of being served with the interim order.

Negotiations

The matter will then be listed for a Mention Hearing, which is an opportunity to reach an agreement before a Magistrate.

There is no opportunity for submissions, although agreement by way of conduct agreement order or undertaking can be provided for consideration by the Magistrate.

In the absence of agreement, the Magistrate will often encourage the parties to consider negotiating a resolution by consent, to avoid proceeding to trial.

Recently, the Court has been offering parties the opportunity to participate in a shuttle conference, which provides an opportunity to reach an agreement without being in the same room. These conferences are facilitated by Registrars of the Court with the consent of the parties.

Interim FVRO matters can be resolved by consent (i.e., without proceeding to a final hearing) in one of the following ways:

-          By way of a Conduct Agreement Order, which is made on a without admissions basis, but has the same legal effect as a final FVRO i.e., enforceable and can result in criminal charges if breached;

-          By way of the unilateral or mutual undertaking, which is a written agreement that is not legally enforceable, although can be used as evidence in future proceedings;

-          Withdrawal of the application.

Final Hearing

If the parties cannot reach an agreement, then the matter will proceed to a final hearing (or trial).

Each party will present their case by giving oral evidence and having their witnesses give evidence.

If the Applicant is successful and the final order is made, they can make an application for the Respondent to pay their reasonable costs incurred.

If the Respondent is successful and the application is dismissed, they can only make an application for the Applicant to pay their reasonable costs incurred if they can prove that the Applicant’s application was “frivolous or vexatious”.

When is a final order made?

For a Magistrate to be satisfied that it is appropriate for a final order to be made after trial, they must be satisfied that:

-          the Respondent has committed family violence against the Applicant and is likely to commit family violence against the Applicant in the future, or

-          the Applicant has good reason to fear that the Respondent will commit family violence against them.

If you require any assistance with your application for an FVRO or you need assistance defending yourself against an application for an FVRO, please do not hesitate to contact our experienced legal team.



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