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Restraining orders

1          What are the different types of restraining order?

2          How do I get a restraining order?

3          How do I cancel or vary a restraint order?

4          What can I do if someone has applied for a restraining order against me?

5          What happens if a restraining order made against me?

 

1          What are the different types of restraining order?

Restraint Order

Family Violence Order

A Restraint Order is an order made by a court. It prevents one person from acting in a certain way towards another.

 

You can apply for a Restraint Order if:

           You have been injured by another person, or they have damaged your property and that person is likely to cause similar injury or damage again.

           You have been threatened by the other person and you think that they are likely to carry out that threat.

           The person to be restrained has behaved in an offensive manner and is likely to behave in the same or similar manner again.

           You have been stalked by the person to be restrained, or the person to be restrained has stalked another person which made you scared.

 

A Family Violence Order is an order made by a court. It prevents one person from acting in a certain way towards another in a family or domestic relationship.

You can apply for a Family Violence Order if you are  married or over 16 years old and in a significant relationship in which your spouse or partner commits family violence against you, or if you are a child who is affected by family violence.

Family violence means assault, threats, coercion, intimidation, verbal abuse, abduction, stalking, economic abuse or emotional abuse against a person’s spouse or partner. It also includes any damage caused, directly or indirectly, to any property owned by an affected child, spouse or partner.

There is also a special type of Family Violence Order called a Police Family Violence Order. These can be issued by a police officer of sufficient seniority if they are satisfied a person has committed or is likely to commit family violence. These orders last for 12 months unless otherwise varied or revoked by a court.

2          How do I get a restraining order?

There are four categories of people who can apply for a Restraint Order or Family Violence Order:
  •   Police officers
  • A person who needs protection
  • A parent or guardian of a child who needs protection
  • A person who the court has granted leave to apply.
You can apply for a restraint order at the Magistrates Court using the ‘Restraint Order Application’ form or the ‘Family Violence Order’ form found on the Magistrates Court website. You will then be told a date and time to go to court to explain why you need the order.

If the magistrate thinks that you need immediate protection they can issue an interim restraint order which will operate until a final order is made. You can also apply for an urgent order, where you will go to court on the same day that you make the application

The order will be effective as soon as the person being restrained is informed of the order.

3          How do I cancel or vary a restraint order?

Either the person seeking protection or the person being restrained can apply to the court to change, extend or cancel a restraint order.

4          What can I do if someone has applied for a restraining order against me?

When you are told that there is an application for a restraining order against you, you will be given a time and date for a formal court hearing. At that hearing you can do one of three things:
  • Consent to the order: the order will be made as requested in the application (this does not mean that you agree that it is true).
  • Contest the application: You will need to go to a further hearing, where you can tell your side of the story. The magistrate will then decide whether or not to cancel the application.
  • Not go to court: the magistrate will make a decision without you being there on whether the restraint order shall be issued.

5          What happens if a restraining order made against me?

Having a restraining order against you is not a criminal offence and does not go on your criminal record. However, breaching a restraining order may result in a criminal charge.

If you breach a Restraint Order there is a maximum penalty of up to $1,570 or up to 6 months imprisonment.

If you breach a Family Violence Order the maximum penalties are:

  • for a first offence: a fine not exceeding $3,140 or imprisonment for up to 12 months
  • for a second offence: a fine of $4,710 or imprisonment for up to 18 months
  • for a third offence: a fine of $6,280 or imprisonment for up to 2 years
  • for a fourth offence or greater: imprisonment for up to 5 years.
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.

 

NCYLC would like to express thanks to the law clerks and volunteers who assisted with the preparation of this material: Ray Aryal, Hayley Johnson, Jaslyn Ng, Katherine Warner.

 

This page was last updated in January 2017.

 

   
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