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.

There are two types of protection order: A domestic violence order is used when you are applying against a family member, a person who cares for you or your partner (including a serious boyfriend or girlfriend if your relationship meets certain criteria). Otherwise, a peace and good behaviour order is used.

When can I apply for a restraining 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. However, you cannot apply for a domestic violence order if you are under 18.
• 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 domestic violence order if someone in your family, a person caring for you or your partner is being abusive towards you, including being violent, damaging your property, unreasonably restricting your movement without your consent, or threatening to be abusive.

You can seek a peace and good behaviour order if some has threatened to assault you or destroy or damage your property, and you fear that they will actually do so.

A police officer and certain other persons can also apply for a domestic violence order on your behalf.

How do I apply for a restraining order?

If you are under 18, you cannot apply for a domestic violence order unless you are applying against:

• someone who you are married, engaged or in a couple with, or
• someone who is not your parent, but whom you voluntarily care for or are cared for by (for example, if someone helps you or if you are helped by someone in eating meals, personal grooming, and other daily activities).

If you are applying for a Peace and Good Behaviour order, or are 18 or over and applying for a domestic violence order, you can make a private application to the court.  If you are applying for a Peace and Good Behaviour order:

• You must complete a Complaint form and loge it at the Magistrate’s Court. There is a filing fee of $81.10 for a Peace and Good Behaviour order.
• If you are under 18, you must arrange for someone over 18 to serve a copy of the Complaint to the person you are applying against. You can also ask your local police as to whether they will serve on your behalf.
• You must both go to court for the Peace and Good Behaviour order to be made by a magistrate or registrar.

You can find details on how the application and court process for a Peace and Good Behaviour order here.

If you are applying for a domestic violence order:

• You must complete an application form and lodge it at the Magistrate’s Court.
• 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.

You can find details on how the application and court process for a domestic violence order here.

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

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 a domestic violence order, to shorten or extend how long the order will last for, and to remove the 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.

• For a breach of a domestic violence order, the penalty is a fine of up to $14,628, or community service, a good behaviour bond, or imprisonment for up to three years.
• For breach of a Peace and Good Behaviour order, the penalty is a fine of up to $12,190, or imprisonment for up to one year.

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 has 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 a domestic violence 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.