How do I get a restraining order?

How do I get a restraining order?

By cropped Clara Suki

· Read time: 6 minutes

Restraining orders are court orders that give a person legal protection against someone who they fear may be violent towards them. A restraining order is legally binding and can be administered from the Federal Circuit and Family Court. If an individual finds themselves being scared for their own safety or their children’s safety, they should definitely consider applying for a restraining order.

What is a restraining order? 

As stated above, a restraining order is a legally binding order issued from the Family Court. These orders can be different for every individual applying, as the conditions of a restraining order will be based on the particular circumstances of the case. 

Examples of conditions of restraining order: 

Examples of some conditions that can be put in a restraining order such that an individual, their children, and their property remains safe includes: 

  • A requirement that the defendant cannot come into close proximity with the protected person (for example, the restraining order can specify the exact distance in meters)
  • A requirement that the defendant cannot contact or attempt to contact the protected person (this can include contact via messages, calling, other social media, and in person). 

What are the different types of restraining orders? 

There are different types of restraining orders to suit different circumstances an individual may be in. For example, a different restraining order may be needed for people facing different types of violence (e.g. mental or physical). The type of ‘protected person’ may also affect what type of restraining order a person applies for. For example, if the ‘protected person’ includes a mother and a child, this could warrant a different order than if the ‘protected person’ did not share the same residence as the ‘defendant’. 

The types of restraining orders include: 

  1. Family Violence Restraining Orders
  2. Violence Restraining Orders
  3. Misconduct Restraining Orders

The next three sections will examine these three types of orders in more detail. 

Family Violence Restraining Orders

A Family Violence Restraining Order (FVRO) is an order that protects victims of family violence. Family violence is defined as a violent threat or act that an individual inflicts on another family member. This can include coercive, manipulative, or controlling behaviour. Acts or threats of domestic violence would fit in this category of restraining order. 

Generally for ‘family violence’ to be proven in order to get an FVRO, there are two considerations: 

  1. Whether the defendant has made the victim feel unsafe 
  2. Whether the victim believes that the defendant will conduct themselves violently again in the future.  

If an individual has already experienced violence from another family member, they can choose to apply for an FVRO online or over the phone. A phone application can be done by calling the police over the phone and asking for an FVRO. These orders only last for 3 months and are designed to be a temporary measure. 

It is recommended that the individual experiencing violence seek legal advice such that the most effective protection can be given for the victim. 

Violence Restraining Orders

Violence Restraining Orders (VRO) are the second type of restraining orders. A VRO can be claimed against a defendant who has: 

  • Behaved towards the victim in such a way that makes them scared or scared of something they will do in the future
  • Committed or is likely to commit a violent act on the victim or the victim’s child (or someone else the victim is legally responsible for). 

If the defendant has already been violent towards the victim, it is important for the victim to contact police straight away and obtain a criminal incident report number. If the defendant has not yet been violent, but the individual fears that they may in the future, they can seek legal advice to help apply for a VRO. 

Misconduct Restraining Orders

A Misconduct Restraining Order (MRO) is the third type of restraining order and generally applies in the least severe of circumstances. An MRO is the order relevant in circumstances when the defendant is: 

  • Intimidating the victim or the victim’s child (or another person the victim is legally responsible for)
  • Behaving offensively to the victim or someone the victim is legally responsible for
  • Likely to damage the victim’s property 
  • Likely to commit a breach of the peace. 

It is important to note that an MRO can only be granted to someone that the courts or police deem a ‘vulnerable person’. Again, it is recommended that legal advice is sought when applying for an MRO as it can be a complicated process depending on a victim’s circumstances. 

How do I apply for a restraining order?

In most circumstances, there are three different types of individuals who can apply for a restraining order. These include: 

  1. An individual who needs protection
  2. An individual who is legally responsible for someone who is in need of protection (e.g. a parent who is legally bound to care for their child)
  3. An authorised support person/service provider (a lawyer for example) helping someone make a restraining order. 

Generally, the person applying for a restraining order will be the person who requires protection from a violent person. This person applying is generally known as the ‘protected individual’ and the person causing or threatening harm will be known as the ‘defendant’. 

Applications made online or in person

Applications for restraining orders can be made either online or in person. The online process is meant to help victims who may not be able to go outside and visit a Court or police station to apply. It is important to note however, that an online application must be made by an approved legal organisation and cannot be made by the victim alone. 

As the application process for a restraining order can be convoluted and difficult in some circumstances, it is recommended that individuals contact a lawyer. 

If you need any assistance regarding a restraining order application please feel free to reach us via the contact form below.

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