Restraining orders are legal orders designed to protect a person from violence, threats, intimidation, harassment or other behaviour that causes them to fear for their safety. In Western Australia, there are different types of restraining orders, including Family Violence Restraining Orders (FVROs) and Violence Restraining Orders (VROs).
If your circumstances have changed and you’re wondering how to cancel a restraining order in Australia, it’s important to understand that you can’t simply withdraw the order yourself once it has been made. Our experienced team of VRO lawyers in Perth share their insights on restraining orders, and how to cancel or vary them.
How Do You Cancel A Restraining Order in Australia?
A person may apply for a restraining order because they’re experiencing family violence, threats, stalking, harassment or other behaviour that makes them feel unsafe. In some situations, however, circumstances can change after the order is made. You may reconcile with your former partner, your circumstances may change, or you may decide that you no longer want the protections provided by the order.
Whatever your reason, cancelling a restraining order is a decision that should be considered carefully. In Western Australia, the court has the power to vary or cancel a restraining order, so even if you’re the person who originally applied for it, that doesn’t mean you can simply cancel it yourself.
Can I Cancel A Restraining Order?
Yes. Under Western Australia’s Restraining Orders Act 1997, the person protected by a restraining order can apply to the court to vary or cancel the order. This applies whether you were the person who originally made the application yourself or, in some circumstances, the order was applied for on your behalf. The legislation also allows certain other people, such as a police officer in particular circumstances, to apply to vary or cancel an order.
However, it’s important to understand the distinction between asking to cancel a restraining order and actually cancelling one. Once an order has been made, it remains legally enforceable unless and until it expires or the court formally changes or cancels it.
The court ultimately decides whether the order should be cancelled. You shouldn’t assume that telling the respondent you no longer want the order means they’re free to contact you. Until the order has been formally cancelled or varied, its conditions continue to apply.
If you’re considering cancelling an order because you and your former partner have reconciled, it’s particularly important to obtain legal advice before taking any action. Reconciliation doesn’t automatically cancel a restraining order, and contacting the respondent could potentially create complications while the order remains in place.
Can The Respondent Ask To Cancel The Restraining Order After It Is Granted?
Yes. The person who is bound by a restraining order can also apply to the court to vary or cancel it. However, the rules are different depending on whether they’re seeking to change an interim order or a final restraining order.
A respondent generally can’t simply apply to have a restraining order cancelled because they disagree with it or because the protected person says they no longer want it. For a final order, the respondent must generally satisfy the court that there has been a substantial change in the relevant circumstances since the order was made, or that the protected person has repeatedly invited, encouraged or attempted to cause them to breach the order. There are also specific rules relating to applications concerning interim orders.
This means that if you’re the protected person and your former partner tells you that they want the order cancelled, you shouldn’t feel pressured to agree to this or assume that the order will simply disappear. The respondent has their own legal avenues for seeking a variation or cancellation, and you have an opportunity to respond to an application in the circumstances provided for by the legislation.
Can I Vary A Restraining Order?
Cancelling the order completely isn’t your only option. Depending on your circumstances, you may be able to ask the court to vary the order rather than remove it altogether.
Under WA law, a protected person can apply to change the conditions, extend the duration or cancel a restraining order. This can be useful where the original restrictions are no longer appropriate but you still want some protection to remain in place.
Changing The Conditions
You may not want to cancel the restraining order entirely but may need some of its conditions changed. For example, your circumstances might have changed since the order was made and you now need to communicate with your former partner about your children.
Depending on the circumstances, a variation might allow communication for specific purposes or create an exception to an existing restriction. Legal Aid WA gives examples including allowing communication by text or email about children, or allowing the respondent to attend an address with a police officer to collect belongings.
If you’re considering a variation, it’s important to be precise about what you want changed. A vague or poorly drafted variation could create confusion about what conduct is permitted and what remains prohibited. Getting legal advice can help you understand the practical consequences of changing the conditions.
Extending The Length Of The Order
You can also apply to extend the duration of a restraining order if you believe you still need its protection. This may be relevant if the order is approaching its expiry date but you remain concerned about your safety or the behaviour of the person bound by the order.
The fact that a restraining order has been in place for some time doesn’t necessarily mean that the underlying concerns have disappeared. Equally, you shouldn’t assume that an order will automatically continue beyond its stated expiry date.
If you believe you need the order for longer, it’s sensible to consider the situation before it expires and obtain legal advice about your options. In some circumstances, an application to extend the order can prevent it expiring while the application is being determined, subject to the requirements of the legislation.
Cancelling A Restraining Order Completely
If you no longer believe you need the protection provided by the order, you can ask the court to cancel it completely. Under section 45 of WA’s Restraining Orders Act 1997, the person protected by the order can make an application to vary or cancel it.
However, applying for cancellation doesn’t mean the order immediately stops operating. The court needs to deal with the application and make an order cancelling the existing restraining order.
It’s also worth thinking carefully about why you want the order cancelled. If you’re considering cancellation because you’ve reconciled with your former partner, feel pressured by them, are concerned about the impact on your children or simply believe the situation has improved, independent legal advice can help you assess your options before you make a decision.
How Do I Apply To Cancel A Restraining Order in Australia?
If you’re in Western Australia and you’re the person protected by the restraining order, you can apply to the court to vary or cancel it. The WA legislation specifically provides for an application by the protected person, and the Magistrates Court provides a Form 12 – Application to Vary or Cancel a Restraining Order for this purpose.
The general process involves:
- Determine what you want to change. Decide whether you’re seeking to cancel the order completely, change particular conditions or, if appropriate, extend the order.
- Complete the relevant application. In Western Australia, the application to vary or cancel a restraining order is made using the prescribed court form. Current forms are available through the Magistrates Court of Western Australia.
- Lodge the application with the court. The application needs to be lodged with the appropriate court registry so that the matter can be dealt with by the court.
- Attend the hearing. Where the protected person applies to vary or cancel an order, the court will generally set a hearing date and the person bound by the order will be summoned to attend and have an opportunity to respond.
- Explain why you’re seeking the change or cancellation. The court will consider the application and the circumstances before deciding whether to vary or cancel the order. It isn’t simply an administrative process where the order is removed because the protected person has requested it.
There is an important exception where the protected person is seeking to cancel the order completely. Under section 48A of the Restraining Orders Act 1997, the applicant can indicate that they want the application heard in the absence of the person bound by the order. If this request is made, the registrar can arrange a hearing for that purpose.
At the hearing, the court has the power to dismiss the application, vary the existing order or cancel it. If an order is varied, the court can cancel the original order and make a replacement order containing the variations.
What Happens If I Change My Mind After Applying?
If you’ve applied for a restraining order but it hasn’t yet been finally determined by the court, the situation can be different from cancelling an order that has already been made.
For example, in some circumstances, an application for a restraining order may be resolved by an undertaking from the respondent. An undertaking is a promise made to the court by the respondent and can sometimes be used to bring a restraining order application to an end before a final hearing. If the parties agree to an undertaking, the application can be dismissed and an interim FVRO or VRO can be cancelled by the court.
It’s important not to assume that simply telling the court you’ve changed your mind will automatically result in the same outcome in every case. The appropriate option depends on the type of order, its current status and the circumstances that have changed.
Should I Get Legal Advice Before Cancelling A Restraining Order?
There’s no requirement that you must have a family lawyer to apply to cancel a restraining order. However, getting independent legal advice can be particularly important where the order relates to family violence, separation or divorce.
You may be considering cancellation because you and your former partner have reconciled, because you need to communicate about your children, because the circumstances that led to the order have changed, or because you’re experiencing pressure from the person bound by the order. These situations can be complicated, and what feels like the simplest solution may not always provide the protection or legal outcome you actually need.
A family lawyer can explain the consequences of cancelling or varying the order and help you consider whether another arrangement may be more appropriate.
A restraining order is a serious legal protection, and cancelling one shouldn’t be treated as simply withdrawing a complaint. In Western Australia, the court has the power to vary or cancel the order, and the order remains in force unless it is formally changed or cancelled by the court.
If your circumstances have changed and you’re considering cancelling or varying a restraining order, it’s important to understand your options before making a decision. The process is different depending on the type of order, whether it’s interim or final and your individual circumstances.
If you need advice about a restraining order in Western Australia, Hickman Family Lawyers can help.
Ella Hickman and her team can provide guidance about restraining order applications, variations and cancellations, including where the order relates to separation or family law issues.
As trusted Perth lawyers experienced in restraining orders, Hickman Family Lawyers offers a free 15-minute, no-obligation information call where you can discuss your circumstances and find out what legal help may be available to you.
