Restraining orders

For free and confidential legal advice about this topic, please contact us here.

What is a restraining order?

A protection order is an order made by a court. It prevents one person from acting in a certain way towards another. If you are concerned that someone will commit an act of violence or harassment against you, a protection order can prevent that person from making contact with you or your property, going to your home, work or other places, or from doing specified things.

When can I apply for a restraining order?

You can apply for a protection order against a family member, person who you live or lived with, a person in a domestic relationship with you (called a Domestic Violence Order) or someone other than a family member, person you live with or person in a domestic relationship with you (called a Personal Protection Order). Examples of when you may seek to apply for an protection order include:

• Domestic violence: if you are being subject to violence or harassment by someone in your family, a protection order can restrict their behaviour, e.g. prevent them from coming close to you, or threatening you or your property.
• Child abuse: if you are being subject to abuse by a parent or guardian, a protection order can restrict their behaviour, e.g. prevent them from speaking to you, coming close to you, or threatening you or your property.
• Bullying – at school: if you have already tried lodging a formal complaint with your school, but are still being bullied then, a protection order can restrict their behaviour of someone at your school, e.g. prevent them from coming close to you, or threatening you or your property.
• Bullying – online: an protection order can prevent someone from contacting you both online as well as offline, e.g. commenting on your profile, sending messages, or tagging you in a photo.

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 seek a protection order if you require protection from domestic, personal, or workplace violence and harassment.

How do I apply for a restraining order?

If you are under 18 and applying against someone who is not a family member, a litigation guardian must apply to the court on your behalf or you can make a private application without a litigation guardian with the consent of the Magistrates’ Court. A litigation guardian is someone who is over 18 and can represent you in the proceedings. This can be a parent, or someone else acting on your behalf such as a Public Advocate.

If you are applying against a family member, or are 18 or over and applying against someone not a family member, you can make a private application to the court.  

You can find more information on applying for a protection order here.

A copy of the application will also be given to the person you are seeking the protection order against. You must both go to court for the protection order to be made by a magistrate or registrar.

At court, you will need to attend a conference. You and the person you are applying against will be seated in different areas and a court officer will speak to you separately to try to reach an agreement. For example, the person you are applying against may formally promise to change their behaviour, without a protection order being made.

The registrar may also refer you to settle the application by mediation instead of going to court. This will involve you and the person you are applying against meeting with a third-party, a mediator, to discuss options and find an outcome.

If no agreement is reached, or the other person fails to attend, the application will be heard in court and a Magistrate will decide if a protection order should be made.

You can find details on how the conference and court process works here.

There is no fee for applying for a protection order. However, if you engage a lawyer to represent your application in court, you will have to pay the lawyer’s legal fees. Community Legal Centres will sometimes assist in representing protection orders without charge.

If you urgently need protection before a final order can be obtained, the court may issue an interim order to provide you with protection until your next court hearing.

What happens once I apply for a restraining order?

The other person must obey the orders set out in the protection order. If they do not, you should report this to the police. Breaching a protection order is a criminal offence which can be punishable by a fine or a prison term.

You can apply to the court to add or remove orders in the protection order, to shorten or extend how long the protection order will last for, and to remove the protection order.

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

A protection order is not a criminal charge. It will not appear on your criminal record. However, if a protection order has been made against you, and you knowingly breach one of the conditions in the protection order, this will be a criminal offence. You may have to pay a fine of up to $75,000, and/or be imprisoned for up to five years.

When the protection order application is being heard in court, you can ask to postpone the hearing to get time to see a lawyer, agree to the protection order, or disagree to the protection order (if you disagree, the Court will hear evidence from both sides and decide whether an protection order should be made). If you do not go to court on this day, the court may make a protection order against you even though you are not present.

You can find more information on responding to a protection order application here.

If the court makes a protection order against you read it carefully. You must obey all the orders in the protection order, for the period of time stated in the protection order. You should not do something inconsistent with a protection 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 protection order they can seek to have it removed or changed.

You can apply to the court to have the protection order withdrawn, changed or shortened.

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