A misconduct restraining order is an order made by the Court to restrain a person from either breaching the peace, causing fear, damaging property or intimidating another person. A misconduct restraining order is used when the person whom the restraining order is made against is not in a domestic relationship with the person making the application, and there has not been an incident of violence.
The person that the order restrains is known as the respondent or the person bound whereas the person making the application for protection is known as the protected person.
In order to obtain a misconduct restraining order an application must be made to the Magistrates Court of Western Australia by completing an application and by filing it with the Magistrates Court Registry or if the person sought to be bound is a child, the application must be made to the Children’s Court.
Once the application is made the court will fix a date where the court will ask the respondent whether they agree to be bound by the order and if they do not, a trial date will be allocated to determine whether the restraining order should be made.
A misconduct restraining order remains in force for the period stated in the order, or if no specific time is stated then for one year from the date in which it was served on the person bound by the order.
An application can also be made by the person who made the application to have the order cancelled by filing a form 8 restraining order application to vary or cancel with the Magistrates Court or Children’s Court depending on the person who is bound by the order. This form can be found online via the Magistrates Court website.
Once the application to cancel an application has been made a hearing date will be set and the court may order for the restraining order to be cancelled.
For a number of reasons it can often be advisable to have a lawyer represent you if you are applying for or seeking to respond to an application for a misconduct restraining order.
These include the following:
- Lawyers know the law surrounding not only misconduct restraining orders, but also evidence, and how it should be admitted.
- It can be difficlut to fact the other party to a misconduct restraining order, which may prevent you from presenting your case properly.
- If a misconduct restraining order is granted there can be serious restrain to your ability to go places or approach people.
We strongly recommend that people involved in misconduct restraining order proceedings seek legal advice well before the matter proceeds to a court hearing.