Published January 2026
Breach of restraining order WA – charges discontinued before trial
Perrella Legal represented a client facing allegations of breaching a restraining order amid a difficult divorce. Following careful examination of the allegations and preparation of the defence, the prosecution discontinued the charges before trial.
The successful outcome brought the criminal proceedings to an end, and a significant order for legal costs was subsequently made in our client’s favour.
Defending a breach of restraining order charge in WA
Seven alleged breaches of a restraining order emerged from an acrimonious divorce, with some of the complaints concerning conduct as ordinary as attending a daughter’s netball games.
Our client was already navigating difficult and emotionally charged family-law proceedings when his former wife made a series of complaints to police. Those complaints eventually resulted in seven criminal charges alleging breaches of a restraining order.
The prospect of facing seven separate criminal charges was understandably stressful. A conviction could have had consequences extending beyond the immediate penalties imposed by the Court, particularly given the ongoing family-law proceedings and the already strained relationship between the parties.
When we reviewed the charges in detail, however, a fundamental problem became apparent. Five of the alleged breaches were said to arise from conduct that was inconsistent with clauses contained in Family Court parenting orders. The difficulty for the prosecution was that those clauses were not conditions of the restraining order issued by the Magistrates Court. In other words, the prosecution appeared to be relying on obligations created by one court order to support criminal charges alleging breaches of a different order. That distinction was critical. A person can only be convicted of breaching a restraining order if the prosecution proves that the conduct alleged actually contravened a condition of that restraining order. In our view, conduct said to be inconsistent with Family Court parenting orders could not simply be converted into a criminal breach of the Magistrates Court restraining order. We therefore considered that five of the seven charges were fundamentally flawed and should not succeed at trial. The remaining two charges also presented significant difficulties for the prosecution.
After reviewing the available evidence, we identified a positive defence to one of the allegations. In relation to the other, we considered that the prosecution would face substantial difficulty proving the charge beyond reasonable doubt. Taken as a whole, the case appeared far weaker than the number of charges initially suggested. We prepared a detailed written submission setting out the legal and evidentiary problems and invited the prosecution to reconsider whether the matter should continue. That submission identified the distinction between the Family Court parenting orders and the restraining order, the defence available to one of the remaining charges, and the evidentiary difficulties affecting the final allegation.
Two months later, the prosecution responded briefly and advised that all seven charges would proceed. We therefore continued preparing the matter for trial. That involved working through the individual allegations, the wording of the relevant orders, the prosecution evidence and the defence position in relation to each count.
For our client, the continuing prosecution was frustrating. He had already been required to incur the time, stress and expense associated with preparing to defend seven charges despite the legal deficiencies we had identified well in advance. Then, on the afternoon before the trial was due to begin, the prosecution contacted our office and advised that every charge would be discontinued the following day.
The result brought the criminal proceedings to an end without our client having to stand trial on any of the seven alleged restraining order breaches.
He was relieved that the prosecution was finally over, but understandably frustrated that the issues raised in our earlier written submission had not been accepted sooner.
By that point, significant legal work had already been undertaken in preparation for a trial that no longer needed to occur. We therefore applied for our client’s legal costs. The Court ultimately made a significant costs order in his favour.
The final outcome was the discontinuance of all seven charges, no convictions for breaching the restraining order, and a substantial recovery of the legal costs incurred in defending the prosecution.
The case demonstrates the importance of carefully identifying the precise legal source of an alleged obligation before criminal charges are pursued.
Family Court parenting orders and Magistrates Court restraining orders may operate alongside one another, but they are not interchangeable. A breach of one does not automatically amount to a criminal breach of the other.
In this matter, close analysis of the orders and the evidence showed that the prosecution case was significantly weaker than it first appeared. Although that position was not accepted immediately, every charge was ultimately discontinued before trial.