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If you have been subjected to family violence or are threatened in some other way including threat of damage to your property, you can apply to the court for a restraining order, against the person that is threatening you.
If you have been served with an interim restraining order, you must reply within 21 days. We can advise you, assist with your reply and provide court representation.
The application is heard in the Magistrates’ Court and usually at the Court closest to you.
There are three types of restraining orders:
Where the protected person or respondent are family members
If the Family Violence Restraining Order is a part of a family law dispute, we can assist you in the application or defend you in court; and the such orders are relevant to the family law proceedings.
Getting the right legal advice is crucial to the success of any application made or needing to be defended, and will reduce the stress that comes with any such application.
The process for applying for a violence restraining order is the same as applying for a family violence restraining order.
If you are under the age of 18, or are applying for an order for your child who is under the age of 18 who is not part of your application, you will need to apply to the children’s court instead.
The application generally requires information such as:
Once you have completed and filed the application, your application will be heard at the earliest possible time, very often on the same day, and if there is merit an interim order is usually granted. The respondent is not present in the initial hearing. Once the interim order is granted, this is served by the police on the respondent who then has 21 days to reply either objecting to the interim order or accepting the order.
If the respondent objects, the court will list the application for a full hearing, where the court will hear from both sides and consider the evidence of each side, and make a final determination on balance of probability.
If the respondent, accepts the interim order, that order will become final orders. If the respondent does not reply within 21 days, the interim orders will by default become the final orders.
Whilst the application is being considered, the interim orders remain in force, and any breach of the same is a criminal offence. Repeated breaches of violence restraining orders can lead to a term of imprisonment.
If a restraining order is made (interim or final), a copy of the order will be given to both the protected person and the respondent. Most intervention orders are for a period of 2 years, after which it will lapse unless the danger or threat is ongoing in which case the protected person may seek and extension of the order. The order will list what the respondent cannot do and for what period of time the order will be in place.
You should keep detailed records and proof of any breaches and immediately report the breach to the police.
Defending a restraining order involves attending Court and disputing the allegations made against you.
Once you are served with a copy of the interim restraining order from the Police, you should contact a lawyer immediately. Time is of essences, and it is important to get proper legal advice early, as the finalising of the order may have much wider implication if the parties are in a family relationship and the jurisdiction of the Family Court is to be invoked.
The first step is to attempt to resolve the matter early by consent; but as interim orders prevent contact between the protected person and respondent, a lawyer is best placed to negotiate on behalf of the respondent. Once an interim order is granted, it is not only an offence for the respondent to contact the protected person but also it is usual in such orders that the respondent cannot contact the protected person via a third party, unless that third party is a legal practitioner acting for the respondent. It is therefore crucial that you engage a lawyer as soon as possible as the lawyer can communicate and negotiate with the protected person on your behalf.
The process may take between 6 months and a year, depending on the Magistrates Court that is hearing the matter. This can mean that you may be involved in two or three Court hearings over this time.
In the final hearing both parties, and any other witnesses, give evidence about what occurred. The Magistrates will need to be satisfied that violence has occurred and that it is likely to continue to occur again. If satisfied the interim orders are made final, if not, the application is dismissed.
Restraining Orders have consequences and if you require assistance and legal advice contact one of our lawyers to assist you in applying for or defending an intervention order.
In some cases, costs may be awarded for defending a restraining order application, where an application is found to be without any merit or vexatious.
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