Restraining orders

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What is a restraining order?

Personal Violence Order Domestic Violence Order
A personal violence order is an order made by the court preventing a person from committing further acts of violence against the protected person.

You may apply for a personal violence order against someone you are not in a domestic relationship with.

A domestic violence order is an order made by the court preventing a person from committing further acts of domestic or family violence against the protected person.

You can seek a domestic violence order against someone you are in a domestic relationship with. This includes:

  • People you are related to
  • People you are married to, engaged to or dating (even if you are only dating casually and even if the relationship is not sexual)
  • People who have custody or guardianship over you, or you are a guardian of
  • People you regularly live or have lived with and their relatives.

When can I apply for a restraining order?

To obtain a Personal Violence Order you must be able to show that someone has committed a personal violence offence against you or that someone is likely to commit a personal violence offence against you.

A personal violence offence includes if the person has:

  • Caused you harm
  • Damaged your property or property you are responsible for or using
  • Intimidated you (made you think that they would be violent against you, damage your property or cause you mental harm).
  • Stalked you (intentionally followed, watched, loitered around or approached you or places that you regularly visit on at least 2 occasions.)
  • Unlawfully forcing you to do things with your money or property which you don’t want to do.

For a Domestic Violence Order you must show a reasonable fear that the person will commit a domestic violence offence against you. A domestic violence offence arises in the same circumstances discussed above for a personal violence offence, but where this behaviour occurs in a domestic or family relationship.

If you want some advice about applying for a restraining order in your situation, you can contact us here.

Applying for a restraining order

You can go to the nearest Magistrates Court and they will have a form to fill in. You can also access the form here (form 1, or form 1A if you are under 18). Make sure you know whether you need the Application Domestic Violence Order or Application for Personal Violence Restraining Order. You can also go to the police or a Child Protection Officer to file the application for you.

After you hand the application in at the Court, the Court will give you a date for a hearing. The police will inform the respondent of the hearing. The registrar may issue the restraining order, or refer the matter to the court. You may then have to attend another hearing, where the court may decide whether to issue the order or dismiss the application. The person who you are seeking protection against does not have to attend the court hearings.

The court may make an interim domestic violence order or personal violence order to protect you before the final order is made.

For a domestic violence order – if you are in immediate danger, or it is an urgent situation you can call the police who may be able to issue you with an order without applying to the court.

Cancelling or varying restraining orders

The protected person, the police, the person against who the order is made or any other person who the court has given permission may apply to the court to change, extend or cancel an order.

The person against whom the order is made may only apply if there has been a substantial change in circumstances.

What happens if someone applies for a restraining order against me?

If you agree to the MRO being made, you don’t have to go to the court hearing. Alternatively you can attend court and consent to the order. This does not mean that you admit to doing any of the things alleged. The person applying for the order will tell the court why they want the order, and a court will decide whether an order is needed.

If you don’t want the restraining order to be made, you can fill in the ‘Objection’ section on the back of the notice and hand it in to the court. You will have to go to Court for a ‘mention hearing’. You won’t need witnesses at this stage. The court will decide whether you will need to go back a second time for a ‘final order hearing’. If the Court asks you to return for a final order hearing, both you and the applicant will be able to present evidence and witnesses as to why the order should or shouldn’t be made. If you can’t attend the court on either of those days, you should call the court as soon as possible.

You can appeal against the making of a restraining order, however, you should seek legal advice as soon as possible as there are time limits on when you can appeal.

A restraining order is not a criminal charge, however if you breach the conditions of the restraining order, you may be charged with a criminal offence. The maximum penalty for which is $61,600 or up to 2 years imprisonment.   

It is important that you read the terms of any restraining order against you very carefully and do not do anything inconsistent with the terms of that restraining order. You should not do something inconsistent with a restraining order even if the person who the order is aimed at protecting consents to, encourages you to or asks you to do that thing.

For example, if you are prohibited from communicating with a person do not answer their calls or reply to their SMS messages or else you may breach your restraining order. If the person being protected would like you to behave in a way which is inconsistent with the restraining order they can seek to have it removed or changed.

If someone has applied for a restraining order against you and you would like some advice, please contact us here.

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