Magistrates Court (Civil Proceedings) Amendment Rules (No. 3) 2020 (WA)
28 August 2020 GOVERNMENT GAZETTE, WA 2727 JUSTICE
JU301
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings)
Amendment Rules (No. 3) 2020
SL 2020/141
Made by the Magistrates Court in accordance with the Magistrates Court
Act 2004 section 39.1. Citation
These rules are the Magistrates Court (Civil Proceedings)
Amendment Rules (No. 3) 2020.2. Commencement
These rules come into operation as follows —
(a) rules 1 and 2 — on the day on which these rules are published in the Gazette;
(b) the rest of the rules — on the day after that day. 3. Rules amended
These rules amend the Magistrates Court (Civil Proceedings)
Rules 2005.4. Part 21 Division 1A heading and rules 131CAA and 131CAB inserted
After rule 131C insert:
Division 1A — Restraining Orders Act 1997
131CAA. Terms used
In this Division —
Act means the Restraining Orders Act 1997;
section means a section of the Act.
131CAB. Fixing conference under Act
(1) In this rule — conference means a conference under section 49D.
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(2) A conference may be fixed only at a Court location
approved by the Chief Magistrate.(3) A registrar may fix a conference by —
(a) fixing a day, time and place for the conference; and (b) notifying the parties of the conference.
5. Rule 131CA amended
(1) Delete rule 131CA(1). (2) In rule 131CA(2) delete “The court” and insert: For the purposes of sections 9 and 26, the Court (3) In rule 131CA(3) delete “the court must fix a hearing that is to
be held in the absence of one party” and insert:if the hearing is to be held in the absence of a party, it is to be
fixed(4) In rule 131CA(4) and (5) delete “court” and insert: Court Note: The heading to amended rule 131CA is to read: Fixing a hearing under s. 9 or 26
6. Rule 131CB amended
(1) In rule 131CB(1) and (3) delete “the Restraining Orders
Act 1997”.(2) In rule 131CB(3) and (5) delete “court” and insert: Court (3) In rule 131CB(5) delete “court’s” and insert: Court’s Note: The heading to amended rule 131CB is to read: Preparing, serving and delivering restraining orders under s. 10(1)
28 August 2020 GOVERNMENT GAZETTE, WA 2729 7. Rule 131CC amended
In rule 131CC(1) delete “the Restraining Orders Act 1997”.
Note: The heading to amended rule 131CC is to read:
Application for FVRO under s. 24A
8. Rule 131CD amended
In rule 131CD(1) delete “the Restraining Orders Act 1997”.
Note: The heading to amended rule 131CD is to read:
Application for VRO under s. 25
9. Rule 131D amended
In rule 131D(1) delete “Restraining Orders Act 1997,” and
insert:
Act,
Note: The heading to amended rule 131D is to read:
Forms under Act
10. Schedule 1 Form 1 replaced
Delete Schedule 1 Form 1 and insert:
Form 1 — Application for family violence restraining order
Number:
Restraining Orders Act 1997 s. 13A, 24A
Jurisdiction:
Family violence restraining order
Location:
Application
Applicant Family name: Date of birth: [If not the Other names: person seeking Address: street: to be protected]
suburb: postcode:
Phone nos.: work: home: mobile:
Person Family name: Date of birth: seeking to be Other names: protected Address: street: (victim of
suburb: postcode: offence if Phone nos.:
work: home: mobile: s. 13A applies) Respondent Family name: Date of birth: [Fill in as many Other names: details as you Home street: can] address:
suburb: postcode: (Offender if Work street: s. 13A address:
suburb: postcode: applies)
Phone nos.: work: home: mobile:
Grounds for Set out details of the evidence in support of your application. application Offence This is to be completed where the respondent has been convicted of an offence referred to in details section 63(4AA)(a) or 63A(1A). (if s. 13A Date of offence: applies) Offence details:
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Family orders Are there any current family orders relating to the respondent’s Yes No Unknown [If yes, see the rights in relation to children who may be affected by a Details of family restraining order? order Annexure] Are there any current Family Court proceedings in which such Yes No Unknown orders are being sought? Firearms Does the respondent have a firearm or firearms licence? Yes No Unknown Does the respondent have access to a firearm at work? Yes No Unknown Explosives Does the respondent have explosives or an explosives licence? Yes No Unknown Does the respondent have access to explosives at work? Yes No Unknown Police incident [Reference
number to be
inserted, if
applicable]First hearing Do you want the respondent to be present at the first hearing? Yes No Conference Do you agree to the listing of a conference?* Yes No *[Applies only if conferences are available at your court.] Applicant Signature: Date: [Not essential if lodged by
means of the
ECMS or if
applicant is apolice officer]
Hearing Court: Date: Time: [To be filled in by the court]
Approved I [Insert name of approved user] certify that I have read out to the applicant the information the user to certify applicant provided to me that forms the evidence in support of this application, and the applicant’s applicant has declared that the information is true. declaration [If applicable] 11. Schedule 1 Form 2 amended
(1) In Schedule 1 Form 2 Part B under the heading “If the order is an interim order”:
(a) delete “arrange a final order hearing at which it” and insert: list a conference (if you agree to a conference and one is available at your court) or
arrange a final order hearing. At the conference a registrar will attempt to achieve an
appropriate outcome (including the making of orders) without the parties being
together. At the final order hearing the court(b) delete “while you are in prison and will expire 2 years after the date on which you are released from prison (or longer if specified in the order).” and insert:
(while you are in prison and on release) for the period specified in the order. If the
duration of the order is not specified, the order will stay in force for 2 years from the
date on which you are released from prison.
(2) In Schedule 1 Form 2 Part C delete “arrange a final order hearing at which it” and insert: list a conference (if you agree to a conference and one is available at your
court) or arrange a final order hearing. At the conference a registrar will
attempt to achieve an appropriate outcome (including the making of orders)
without the parties being together. At the final order hearing the court
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(3) In Schedule 1 Form 2 Part C delete the table with the heading “Objection” and insert:
Objection
Order Restraining order no.: Court of issue:
Family name: Date of birth: Other names: Address: street:
suburb: postcode:
Do you agree to the listing of a conference?* Yes No *[Applies only if conferences are available at your court.] Will you be represented by a lawyer at a conference or the final order hearing?
Yes No
If yes: lawyer’s name:
lawyer’s firm:
How many witnesses (including yourself) do you intend to call? _________________
Does this interim order prevent you from —
• going to where you normally live? Yes No • having contact with your children? Yes No • going to where you work or otherwise prevent you from doing your job? Yes No • being in possession of a firearm which is essential for your job? Yes No • being in possession of explosives which are essential for your job? Yes No
Signature: Date: (4)
In Schedule 1 Form 2 Part C under the heading “Consent” delete “If I am in prison when the court receives this form, the order will stay in force while
I am in prison and for a further 2 years from the date on which I am released from prison (or longer if specified in the order).” and insert: If I was in prison at the time this order was served on me, the order will stay in force
(while I am in prison and on release) for the period specified in the order. If the
duration of the order is not specified, the order will stay in force for 2 years from the
date on which I am released from prison.(5) In Schedule 1 Form 2 Part D under the heading “If the order is an interim order”:
(a) delete “final order hearing. At that hearing the court” and insert: conference (if the person agrees to a conference and one is available at your court) or
a final order hearing. At the conference a registrar will attempt to achieve an
appropriate outcome (including the making of orders) without the parties being
together. At the final order hearing the court(b) delete “the court received the person’s “Consent” form, the order will stay in force while the person is in prison and will expire 2 years after the date on which the
person is released from prison (or longer if specified in the order).” and insert:
this order was served on the person, the order will stay in force (while the person is in prison and on release) for the period specified in the order. If the duration of the order is not specified, the order will stay in force for 2 years from the date on which the person is released from prison.
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12. Schedule 1 Form 3 amended
(1) In Schedule 1 Form 3 Part B under the heading “Terms of conduct agreement order” delete “made, the order will stay in force while you are in prison and will expire 2 years after the date on which you are released from prison (or longer if specified in the order).” and insert: served on you, the order will stay in force (while you are in prison and on release) for the period specified in the order. If the duration of the order is not specified, the order will stay in force for 2 years from the date on which you are released from prison. (2) In Schedule 1 Form 3 Part C under the heading “Terms of conduct agreement order” delete “while the person is in prison and will expire 2 years after the date on which the person is released from prison (or longer if specified in the order).” and insert: (while the person is in prison and on release) for the period specified in the order. If the duration
of the order is not specified, the order will stay in force for 2 years from the date on which the
person is released from prison.(3) In Schedule 1 Form 3 Part D delete “age of 16” and insert: age of 18 years 13. Schedule 1 Form 4 amended
(1) In Schedule 1 Form 4 Part A delete the row relating to Lifelong
order and insert:Duration
of order
(2) In Schedule 1 Form 4 Part B delete “You must comply with this order for the rest of your life.” and insert: If you were in prison at the time this order was served on you, the order will stay in force (while you are in prison and on release) for the period specified in the order. If the duration of the order is not specified, the order will stay in force for 2 years from the date on which you are released from prison.
(3) In Schedule 1 Form 4 Part C delete “The person who is bound by this order must comply with this order for the rest of the person’s life.” and insert: If the person was in prison at the time this order was served on the person, the order will stay in force (while the person is in prison and on release) for the period specified in the order. If the duration of the order is not specified, the order will stay in force for 2 years from the date on which the person is released from prison.
28 August 2020 GOVERNMENT GAZETTE, WA 2733 14. Schedule 1 Form 5 replaced
Delete Schedule 1 Form 5 and insert:
Form 5 — Application for violence restraining order
Number:
Restraining Orders Act 1997 s. 13A, 25
Jurisdiction:
Violence restraining order
Location:
Application
Applicant Family name: Date of birth: [If not the Other names: person seeking Address: street: to be protected]
suburb: postcode:
Phone nos.: work: home: mobile:
Person Family name: Date of birth: seeking to be Other names: protected Address: street: (victim of
suburb: postcode: offence if Phone nos.:
work: home: mobile: s. 13A applies) Respondent Family name: Date of birth: [Fill in as many Other names: details as you Home street: can] address:
suburb: postcode: (Offender if Work street: s. 13A address:
suburb: postcode: applies)
Phone nos.: work: home: mobile:
Grounds for Set out details of the evidence in support of your application. application Offence This is to be completed where the respondent has been convicted of an offence referred to in details section 63(4AA)(a) or 63A(1A). (if s. 13A Date of offence: applies) Offence details: Family orders
Are there any current family orders relating to the respondent’s Yes No Unknown [If yes, see the rights in relation to children who may be affected by a Details of family restraining order? order Annexure]
Are there any current Family Court proceedings in which such Yes No Unknown orders are being sought? Firearms
Does the respondent have a firearm or firearms licence? Yes No Unknown Does the respondent have access to a firearm at work? Yes No Unknown Explosives
Does the respondent have explosives or an explosives licence? Yes No Unknown Does the respondent have access to explosives at work? Yes No Unknown Police incident [Reference
number to be
inserted, if
applicable]First hearing
Do you want the respondent to be present at the first hearing? Yes No Applicant
Signature: Date: [Not essential if lodged by
means of the
ECMS or if
applicant is apolice officer] Hearing
Court: Date: Time: [To be filled in by the court] Approved I [Insert name of approved user] certify that I have read out to the applicant the information the user to certify applicant provided to me that forms the evidence in support of this application, and the applicant’s applicant has declared that the information is true. declaration [If applicable]
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15. Schedule 1 Form 6 amended
(1) In Schedule 1 Form 6 Part B:
(a) under the heading “If the order is an interim order” after paragraph (b) insert:
If you were in prison at the time the court received your “Consent” form, the order
will stay in force (while you are in prison and on release) for the period specified in the order. If the duration of the order is not specified, the order will stay in force for 2 years from the date on which you are released from prison.
(b) under the heading “If the order is a final order” after the second bullet point insert:
If you were in prison at the time this order was made, the order expires —
• in the case of an order made at a final order hearing or an interim order which became the final order, 2 years after the date on which you are released from prison (or longer if specified in the order); or • in the case of a telephone order which became the final order because you did not object, 3 months after the date on which you are released from prison (or shorter if specified in the order).
(2) In Schedule 1 Form 6 Part C:
(a) under the heading “Objection” after the last bullet point insert:
• being in possession of explosives which are
essential for your job? Yes No
(b) under the heading “Consent” after paragraph (b) insert: If I was in prison at the time this order was served on me, the order will
stay in force (while I am in prison and on release) for the period specified
in the order. If the duration of the order is not specified, the order will stay
in force for 2 years from the date on which I am released from prison.
(3) In Schedule 1 Form 6 Part D:
(a) under the heading “If the order is an interim order” after paragraph (b) insert:
If the person was in prison at the time this order was served on the person, the order will stay in force (while the person is in prison and on release) for the period specified in the order. If the duration of the order is not
specified, the order will stay in force for 2 years from the date on which the
person is released from prison.
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(b) under the heading “If the order is a final order” after the second bullet point insert:
If the person was in prison at the time this order was made, the order
expires —
• in the case of an order made at a final order hearing or an interim order which became the final order, 2 years after the date on which the person is released from prison (or longer if specified in the order); or • in the case of a telephone order which became the final order because the person did not object, 3 months after the date on which the person is released from prison (or shorter if specified in the order).
16. Schedule 1 Form 7 amended
(1) In Schedule 1 Form 7 Part A delete the row relating to Lifelong
order and insert:Duration of order (2) In Schedule 1 Form 7 Part B delete “You must comply with this order for the rest of your life.” and insert: If you were in prison at the time this order was served on you, the order will stay in force (while you are in prison and on release) for the period specified in the order. If the duration of the order is not specified, the order will stay in force for 2 years from the date on which you are released from prison. (3) In Schedule 1 Form 7 Part C delete “The person who is bound by this order must comply with this order for the rest of the person’s life.” and insert: If the person was in prison at the time this order was served on the person, the order will stay in force (while the person is in prison and on release) for the period specified in the order. If the duration of the order is not specified, the order will stay in force for 2 years from the date on which the person is released from prison. 17. Schedule 1 Form 8 amended
In Schedule 1 Form 8 after the row relating to Firearms insert:
Explosives Does the respondent have explosives or an explosives licence?
Yes No Unknown Does the respondent have access to explosives at work?
Yes No Unknown
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18. Schedule 1 Form 10 amended
(1)
In Schedule 1 Form 10 Part C under the heading “If the order is an interim order” delete “arrange a final order hearing at which it” and insert:
list a conference (if available at your court) or arrange a final order hearing. At the conference a registrar will attempt to achieve an appropriate outcome (including the making of orders) while ensuring that the parties are not together during the conference. At the final order hearing the
court (2) In Schedule 1 Form 10 Part D under the heading “Objection” after the last bullet point insert:
• being in possession of explosives which are
essential for your job? Yes No
(3) In Schedule 1 Form 10 Part F delete “age of 16” and insert: age of 18 years 19. Schedule 1 Form 11 amended
In Schedule 1 Form 11 delete the rows relating to Firearms and
insert:
Conference Does the applicant/respondent agree to the listing of a Yes [FVRO only] conference?* No *[Applies only if conferences are available at this court.] Firearms Does the respondent have a firearm or a firearms licence?
Yes No Unknown Does the respondent have access to a firearm at work?
Yes No Unknown
Explosives Does the respondent have explosives or an explosives licence?
Yes No Unknown Does the respondent have access to explosives at work?
Yes No Unknown 20. Schedule 1 Form 12 amended
(1) In Schedule 1 Form 12 Part A:
(a) in the row relating to Variation or cancellation delete: Do you want an additional order, to be read with the original order, which Yes states the variation? Duration of order: Unless specified, an order made under this option will not vary the duration of the original order. (b) before the row relating to Signature insert:
Conference Do you agree to the listing of a conference? Yes [FVRO only] *[Applies only if conferences are available at your court.] No 28 August 2020 GOVERNMENT GAZETTE, WA 2737
(2) In Schedule 1 Form 12 Part B:
(a) under the heading “Application by the person protected by the restraining order” after “vary or cancel the restraining order.”
insert:
If this is a family violence restraining order, the court may also list a
conference (if you agree to a conference and one is available at your court).
The conference may be listed either on the same day as the final hearing or
on another, earlier, day. At the conference a registrar will attempt to
achieve an appropriate outcome (including the making of orders) without
the parties being together.(b) under the heading “Application by the person who is bound by the restraining order” after “vary or cancel the restraining
order.” insert:
If this is a family violence restraining order, the court may also list a
conference (if you agree to a conference and one is available at your court).
The conference may be listed either on the same day as the final hearing or
on another, earlier, day. At the conference a registrar will attempt to
achieve an appropriate outcome (including the making of orders) without
the parties being together.
21. Schedule 1 Form 14 amended
In Schedule 1 Form 14 after the rows relating to Firearms insert:
Explosives Does the person who is bound by the restraining order have explosives or an explosives
licence?
Yes No Does the person who is bound by the restraining order have access to explosives at work?
Yes No 22. Schedule 1 Form 16 amended
In Schedule 1 Form 16 Part A delete “firearm or a firearms
licence.” and insert:
firearm, a firearms licence, explosives or an explosives licence.
23. Various penalties amended
In the provisions listed in the Table:
(a) delete “$6 000” (each occurrence) and insert: $10 000
(b) delete “$6 000” and insert: $10 000
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(c) delete “$6 000” (each occurrence) and insert: $10 000
Table
Sch. 1 Form 2 Pt. B Sch. 1 Form 2 Pt. D Sch. 1 Form 3 Pt. B Sch. 1 Form 3 Pt. C Sch. 1 Form 4 Pt. B Sch. 1 Form 4 Pt. C Sch. 1 Form 6 Pt. B Sch. 1 Form 6 Pt. D Sch. 1 Form 7 Pt. B Sch. 1 Form 7 Pt. C Sch. 1 Form 10 Pt. C Sch. 1 Form 10 Pt. E 24. Various references to “16 years” amended
In the provisions listed in the Table delete “16 years” and insert:
18 years
Table
Sch. 1 Form 2 Pt. E Sch. 1 Form 6 Pt. E Sch. 1 Form 9 Pt. D Mr STEVEN HEATH, Chief Magistrate,
Magistrates Court in Perth.
Date: 18 August 2020.
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