VIOLENCE RESTRAINING ORDERS AND MISCONDUCT RESTRAINING ORDERS
A Violence Restraining Order is made when the court is satisfied that a person (the Respondent) has committed an act of abuse against another person (the Applicant) with whom he or she is or has been in a family or domestic relationship and the Respondent is likely to commit further acts of abuse against the Applicant. Misconduct Restraining Orders are made by the court in similar abusive situations where the parties are not in a family, personal or domestic relationship.
The term family or domestic relationship covers relationships where the parties are or were married or are or were in a defacto relationship or are or have been in an intimate or other personal relationship with each other.
Act of family or domestic violence means that the Respondent has committed an assault or caused injury to the Applicant, has kidnapped or deprived the Applicant of his or her liberty, has damaged property or the injury or death of an animal belonging to the Applicant, or has behaved in an ongoing manner which is intimidating, offensive, or emotionally abusive way towards the Applicant, or has pursued the person with intent to intimidate the Applicant or in a manner that could be reasonably expected to intimidate and does in fact intimidate the Applicant, or threatens to do any acts described here against the Applicant.
The court will make a violence restraining order if it is satisfied that (a) the Respondent has committed an act of abuse against the Applicant and the Respondent is likely again to commit such an act against them or (b) the Applicant reasonably fears that the Respondent will commit an act of abuse against them and that the making of a violence restraining order is appropriate in the circumstances.
Violence restraining orders may be made for children in circumstances of family and domestic violence if the court is satisfied that the child has been exposed to an act of family and domestic violence by the Respondent and is likely to be exposed again to such acts or the Applicant applying on behalf of the child reasonably fears that the child will be exposed to an act of family and domestic violence.
The court considers many issues when considering whether to make a violence restraining order including that the Applicant is protected from acts of abuse, the need to ensure children are not exposed to family and domestic violence, the accommodation needs of the Respondent and the Applicant, the past history of the parties and hardship that may be caused to the Respondent if the order is made and any family orders or current legal proceedings involving the parties.
Restraints imposed on a Respondent might include that he or she must not enter or be near to the Applicant’s place of residence or work, or approach or to communicate with them.
A Respondent will also be prohibited from being in possession of a firearm or firearm’s licence unless the court is satisfied that the Respondent cannot carry on their usual occupation unless permitted to have a firearm or firearm licence.
A Violence Restraining Order applies from the time the Respondent is served by the police.
If an Interim Violence Restraining Order becomes final it will stay in force for 2 years unless another time limit is specified by the court.
A Respondent has 21 days from the date of being served with an interim Violence Restraining Order to lodge an objection. If the Respondent does not lodge an objection the interim order will become a final order at the end of the 21 day period.
If the Respondent lodges an objection the matter may be listed for a Mention hearing where both parties are expected to appear before a magistrate or it may be listed for a final court hearing when the magistrate will decide whether to make a final order based on hearing the evidence of both parties.
An application to vary or cancel a restraining order may be made if the court is satisfied that the Applicant has persistently encouraged the other party to breach the order or there has been a substantial change in relevant circumstances since the order was made or the Respondent has evidence to show that the restraints imposed by the order are causing him or her serious and unnecessary hardship.
In certain cases we can assist with negotiating a written agreement or undertaking which resolves the dispute between the parties thereby avoiding a final hearing.
Restraining Order matters can take months to proceed to a final hearing. We recommend making an early appointment to discuss your options.
BREACHES OF A VIOLENCE RESTRAINING ORDER
A breach of any of the terms and conditions specified in an interim or final Violence Restraining Order is a criminal offence and repeated breaches will almost certainly lead to a prison term.
To avoid breaches contact our experienced lawyers for legal advice as soon as possible after being served with a violence restraining order and we will explain your legal rights and advise on how the restraints imposed by the court impact upon various aspects of your life such as your usual living and accommodation arrangements, parenting arrangements and other day to day activities.
We can assist with all aspects of violence restraining order matters including breaches.