Western Australian Current Acts Western Australian Current Acts (1) A court, including
a judicial officer considering a case for bail, before which a person charged
with an offence is appearing may make a restraining order against that person
or any other person who gives evidence in relation to the charge.
(2) A court hearing
proceedings under the Family Court Act 1997 or the Family Law Act 1975 of the
Commonwealth may make a restraining order against a party to the proceedings
or any other person who gives evidence in the proceedings.
(3) A court hearing
protection proceedings under the Children and Community Services Act 2004 may
make a restraining order against a party to the proceedings or any other
person who gives evidence in the proceedings.
(3AA) To avoid doubt,
a court acting under subsection (2) or (3) may make a restraining order in the
absence of the person against whom the order is made if the court is satisfied
that the order should be made in the circumstances.
(3a) A restraining
order may be made under this section —
(a) on
the initiative of the court; or
(b) at
the request of a party to the proceedings; or
(c) if
the person seeking to be protected is a child, at the request of —
(i)
the child; or
(ii)
a parent or guardian of the child on behalf of the child;
or
(iii)
in a matter referred to in subsection (3), a child
welfare officer on behalf of the child;
or
(d) if
the person seeking to be protected is a person for whom a guardian has been
appointed under the Guardianship and Administration Act 1990 , at the request
of the guardian on behalf of the person; or
(e) at
the request of a person who gives evidence in the proceedings or in relation
to the charge.
(3b) A court may make
a restraining order under this section against a person and for the protection
of another person even if a restraining order in similar terms in respect of
those persons is in force, but if it does, the court must specify that the
order comes into force immediately the earlier order expires.
(4) A court is not to
make a restraining order under this section unless —
(a) the
court is satisfied that there are grounds for making the order under
section 10D, 11A or 34, as is appropriate to the case; and
(b) the
court has had regard to the matters set out in section 10F, 12 or 35, as is
appropriate to the case.
(4AA) In the absence of exceptional circumstances,
a court is taken to have grounds for making an FVRO against a person if
—
(a) the
person pleads guilty to, or is found guilty of —
(i)
an offence against The Criminal Code section 298, 300,
301, 304(1), 313, 317, 317A, 323, 324, 333, 338A, 338B, 338C or 338E; or
(ii)
an offence against The Criminal Code section 444 that is
dealt with summarily;
and
(b) the
court is satisfied, by a victim impact statement given in relation to the
offence or by any other means, that a family member of the person wants to be
protected by the FVRO.
(4AB) An FVRO made under subsection (4AA) is to
restrain the person from doing all or any of the following —
(a)
being on or near premises where the person seeking to be protected lives or
works;
(b)
approaching within a specified distance of the person seeking to be protected;
(c)
communicating, or attempting to communicate, (by whatever means) with the
person seeking to be protected;
(d)
anything else referred to in section 10G that is specified by the court in the
FVRO.
(4a) Subject to
subsection (4B) a restraining order made under this section is a final order.
(4B) A restraining
order made by a court under subsection (2) or (3) will be an interim
restraining order if —
(a) the
person who would be bound by the order objects to it being made and the court
considers that the order should be an interim order in the circumstances; or
(b) the
person against whom the order is made is not present when the order is made.
(4c) Sections 33, 42,
43 and 44 apply to an interim order made under subsection (4B)(a) as if the
person bound by the order —
(a) were
the respondent; and
(b) had
returned the respondent’s endorsement copy of the interim order —
(i)
in accordance with section 31; and
(ii)
on the day after the interim order was made; and
(iii)
indicating that the person objected to the order becoming
final.
(5) If a restraining
order has been, or is about to be, made under this section, the court may, in
order to facilitate service of the restraining order, order the person against
whom the order has been, or is about to be, made to remain in a place
designated by the court for a period of not more than one hour until the order
is served on that person.
(6) A restraining
order made under this section by a judicial officer is taken to have been made
by the court of which that judicial officer is an officer.
(6a) A restraining
order made under subsection (1) by a justice of the peace considering a case
for bail is taken to have been made by —
(a) the
Children’s Court if the person charged is a child;
(b) the
Magistrates Court in any other case.
(7) A restraining
order made under this section is to be prepared and served —
(a) by
the registrar in accordance with section 10(1); or
(b) if
the registrar is not available at the time the order is made, by the person
making that order in accordance with section 10(1) as if that person were the
registrar.
[Section 63 amended: No. 22 of 2000 s. 13; No. 34
of 2004 Sch. 2 cl. 23(3); No. 38 of 2004 s. 44 and 55; No. 59 of 2004 s. 123
and 124; No. 5 of 2008 s. 104; No. 49 of 2016 s. 69; No. 13 of 2020 s. 41; No.
30 of 2020 s. 77.]