Section 10E of the Restraining Orders Act 1997 states:
"An FVRO may be made for the benefit of a child if the court is satisfied that -
a) the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or
b) the applicant, the child or a person with whom the child is in a family relationship has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship."
In what circumstances should you seek a VRO on behalf of a child?
You should use the powers granted under s.18(2) of the Restraining Orders Act 1997 to apply for an FVRO on behalf of a child to protect them from further exposure to FDV. Consider this option if:
• the violence is likely to escalate and the child is at risk of further harm, and/or
• it would decrease risk to the adult victim if the Department was the applicant for the FVRO.
Refer to FVRO on Behalf of Children (in related resources) for more information.
A FVRO should be considered an opportunity to significantly contribute to a robust safety plan that reduces risk and alleviates the Department's concerns for a child and adult victim experiencing FDV. Seeking a FVRO on behalf of a child does not require the child to be in care, or for the case to remain open for the duration of the FVRO if the child is assessed as being safe in the adult victim’s care.
Approval to obtain a FVRO
The decision to apply for a FVRO on behalf of a child must be approved by a team leader with notification to the district director. Once approved; and before applying for the FVRO, the district must obtain legal advice from Legal and Business Services (via the duty lawyer) through the SharePoint Request Form page (Request for Legal and Business Services link under related resources).
Complete the request form, attach required document using the 'Add Attachment' link, and select 'Duty Lawyer' button. Then select 'Yes' from the drop down menu 'Submit to Legal & Business Services' at the end of the form and save it to lodge the request.
Role of Legal and Business Services
Legal and Business Services:
• provide advice about FVRO applications (Note: the district is responsible for lodging the application and participating in the interim hearing), and
• attend and participate in final order hearings if the interim order is contested by the respondent).
When available, the Legal and Business Services lawyer may also attend to assist with the interim hearing, depending on the circumstances of the case.
Application process
1. Child protection workers should apply for a FVRO on behalf of a child in the Children’s Court. In some circumstances it may be appropriate for the application to be lodged in the Magistrates Court. There are also provisions for telephone applications which might apply in some regional locations (s.19 and s.20 of the Act).
2. Complete the Application Form (link below). In the section ‘application details’ provide a clear and concise summary of past acts of abuse and/or likely future acts of abuse that the child has been exposed to must be provided. In the summary, clearly articulate the grounds for the application and how these meet the legislative requirements (s.10E of the Act).
Practice Direction 5 of 2021 from the Children's Court of Western Australia has proclaimed that unless there are exceptional circumstances, all applications for restraining orders on behalf of a child in the CEO's care should name the CEO of Communities as the applicant. This is to protect the privacy and confidentiality of child protection workers.
3. lodge the Application Form with the registrar at the court and request an ex-parte hearing. Ex-parte means the respondent won’t be present. A judicial officer will hear the matter as soon as possible. At the first hearing, you will be asked to provide evidence to support the application. You can provide this verbally or contained within an affidavit filed with the application. Note: Practice may vary in some regional courts.
For guidance on how to complete a FVRO application and attend court for a first hearing, refer to the following documents (in related resources):
• FVRO application
• FVRO affidavit- example
• FVRO on Behalf of Children - includes information about the first hearing.
4. If an interim FVRO is granted, fax the order to the police station nearest to the respondent's home. WA Police will serve the order on the respondent, if possible within 24 hours of it being granted. The FVRO comes into effect at the time it is served on the respondent.
Obtaining a final order
Where a final order hearing (for example, a defended hearing) is required, you and the Department's Legal Officer (or contract solicitor) should both attend the full hearing.
Recording the FVRO on Assist
When the final order is made, record a “FVRO Alert" in Assist (whether or not the Department the applicant). If the FVRO has been initiated by the Department on behalf of a child, select 'Dept. initiated FVRO' in the drop down box under 'sub type' and record the alert against the children protected by the FVRO. Save a copy of the FVRO on the case file.
