Provide clear practice guidance for child protection workers about applying for a Family Violence Restraining Order (FVRO) on behalf of a child or supporting adult victims to seek FVROs that include themselves and their children.
Note: 'The Department' refers to the Department of Communities.
Note: An adult victim must never be forced or coerced to apply for a FVRO (including through a worker stating that in the absence of that person obtaining a FVRO the Department will take intervention action).
Family Violence Restraining Orders (FVROs) are an important tool for managing risk and increasing safety in cases of Family and Domestic Violence (FDV). Where suitable and appropriate they should be considered as a potential alternative to a protection order, when used in combination with safety planning.
For a definition of 'family violence' as defined by the Restraining Orders Act 1997 or a list of key terms, refer to FVRO Key Terms (also in related resources).
A FVRO is one tool to support safety planning and risk management. You are authorised to apply for a FVRO on behalf of a child by s.18(2) of the Restraining Orders Act 1997 which states that: “an application for a violence restraining order may also be made under this Division — (a) if the person seeking to be protected is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child…”.
The procedures outlined in this entry are designed to support child protection workers to obtain a FVRO on behalf of a child, or to support an adult victim’s application for a FVRO. They should be read in conjunction with Chapter 2.3: Assessing emotional abuse - FDV, Safety planning for emotional abuse - FDV, and Responding to perpetrators of emotional abuse - FDV.
There are many services available to provide assistance to people seeking to obtain a FVRO. When you are involved with an adult victim of FDV who has indicated that they want to obtain a FVRO for themselves and their children, you must offer a warm referral to a specialist support service. Referral options include:
Refer to FDV Referral Guide (in related resources).
Providing relevant information
You should provide relevant information to the services supporting your client to obtain a FVRO. ‘Relevant’ in this case, is any information that supports or demonstrates that an act of abuse has been committed against the persons (adult and child) seeking to be protected, and/or information that demonstrates or supports reasonable fear that an act of abuse will be committed in the future.
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; orb) 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."
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:
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 alleviatesthe 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, the district must notify Legal and Business Services through the SharePoint Request Form page (link also 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:
When available, the Legal and Business Services lawyer may also attend to assist with the interim hearing, depending on the circumstances of the case.
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):
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 Deaprtment is 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.
Breach of a FVRO is a crime. The Criminal Investigations Act 2006 sets out that breach of a FVRO is a “serious offence” and there is a “presumption of imprisonment” for repeated breaches of an FVRO. The person responsible for committing the breach is the person bound by the order. This means that if a perpetrator is found to be in breach of a FVRO, they cannot argue that the breach was ‘consensual’ or that they were ‘invited’, as it is ultimately their responsibility to abide by the conditions.
If you witness, or have evidence of a breach, you must report it to the WA Police. Reports can be made to the local police station or to the Victim Support Unit in your area. For contact information, refer to FDV Referral Guide (in related resources).
Breaches are also a significant indicator of risk. Factor knowledge of a breach into ongoing assessment and safety planning processes.
Undertakings are promises by one party (or sometimes both parties) not to behave in a particular manner. They are sometimes entered into by parties in lieu of a final FVRO.
The conditions of an undertaking are not enforceable by police.
The Department cautions against the use of undertakings as there are rarely any occasions in which FDV can be suitably managed in this way.
For information about the Department's role in circumstances where a child under the age of 16 years is named as the respondent to a FVRO or a Police Order refer to Orders Restraining Children (in related resources).