Domestic violence is a growing problem in Australia, with one in three women experiencing physical violence in a relationship and about one in 16 men also suffering violence from their partner in a relationship.
High profile cases such as the murder of Brisbane mother Hannah Clarke and her three children by her ex-partner in 2020 have highlighted the prevalence of harmful, controlling or violent abuse of a physical, sexual, emotional, verbal and sometimes financial nature by a partner or family member.
One of the means for attempting to control the actions of a person who you fear will commit family or personal violence against you or your children is a restraining order.
This court order is also known more generally as a protective order, and by other titles in the different states and territories of Australia. In fact, in Australia, the term ‘restraining order’ is only used in Western Australia to describe protective orders both against family members and others who have – or you have good reason to believe will – commit acts of personal violence against you.
In WA these orders are known as a Family Violence Restraining Order (FVRO). Additional options include Violence Restraining Orders (VROs) and Misconduct Restraining Orders (MROs) which if made, apply to people who are not in a domestic or family relationship.
These orders may be known by other terms in other states or territories, such as a Personal Safety Intervention Order (PSIO) in Victoria or an Apprehended Personal Violence Order (APVO) in NSW.
In other places, protective orders are known variously as:
- A Domestic Violence Order (DVO) in Queensland;
- an Apprehended Violence Order (AVO) in NSW;
- a Family Violence Intervention Order (FVIO) in Victoria;
- an Intervention Order (IO) in South Australia;
- a Family Violence Order (FVO) or Police Family Violence Order (PVFO) in Tasmania;
- a Domestic Violence Protection Order (DVO) in the ACT, and;
- a Domestic Violence Protection Order (DVO) in the Northern Territory.
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When are restraining orders necessary?
This type of protective order is made when there is family violence present or where a person fears personal violence from another person.
Generally speaking, family violence includes acts of physical violence against a partner or children such as striking or pushing; sexual, emotional or psychological abuse, such as controlling who a person can see or where they can go, or demeaning or humiliating them; plus any other behaviour that coerces or controls a family member or causes them to be fearful.
A family member can include spouses, siblings, children, parents, grandparents, step-children, other relatives and others who are in intimate or family-type relationships.
The process of gaining a restraining order
In the case of an FVRO, the court will make such an order provided it is satisfied that the person who will be subject to its conditions:
- Has committed family violence against you and is likely to commit family violence against you in the future, or;
- You, or those who apply for the order on your behalf – such as the police – have good reasons to fear that the respondent will commit family violence against you.
This type of order can also be made to protect children from being exposed to, seeing, hearing or experiencing the effects of family violence.
Applying to the court for this order involves filling out a form providing details of the person seeking to be protected, the details of the person the order is sought against, the nature of the relationship, and the grounds for making the application.
This form can be obtained from a magistrates’ court, a police station or accessed online.
A hearing will be set for the application as soon as possible at which the court may make an interim FVRO ahead of a final hearing. The respondent has 21 days to respond to an interim FVRO once provided with the order by the police. Failure of the respondent to respond within the time limit will mean the FRVO becomes final and remains in place for two years.
If the person who is the subject of the order objects to its imposition, the matter will proceed to a final hearing where both sides can put their case before a final order is made.
Considering a Binding Financial Agreement or Consent Orders?
FVROs detail certain conditions that the respondent must observe. These conditions can be specific to the circumstances between the parties but generally speaking, include restrictions on the respondent preventing them from:
- Approaching the person who sought the order at their home or workplace;
- being at or near a certain place;
- coming within a certain distance of the person;
- contacting or trying to communicate with the person in any way, whether by text, email or letter;
- contacting or approaching any other person named in the order.
Breaching any of these conditions is a criminal offence.
A common condition allows the respondent an opportunity to collect personal items from the place they used to live or work, often in the company of a police officer.
VROs and MROs: These orders are applied for by people who are not in a domestic or family relationship but where an individual is concerned by the behaviour of another person towards them.
VROS are protective orders to prevent another person from either committing an act of abuse, breaching the peace, causing fear, damaging property or intimidating another person.
The person seeking the order must fear that an act of personal violence has been, or will be, committed by the respondent against the person.
MROs are also applied to restrain a person from either breaching the peace, causing fear, damaging property or intimidating another person, and are made when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.
In the case of both of these restraining orders, a first hearing can be held with or without the respondent.
In the first case, the person seeking the order may give verbal evidence or read an affidavit to the Court. An order, if it is granted, is an interim order which is then served on the respondent. The respondent has 21 days to either consent or object to the order. If the respondent consents or does not respond, the interim order becomes a final order and both parties will be notified. If the respondent objects, a final hearing date will be fixed.
Where the respondent does attend the first hearing but does not consent to the application, it will be adjourned to the next available restraining order trial date. The application may continue to be heard if the respondent does not attend the first hearing.
How do family violence restraining orders work with applications for parenting orders?
Conflict sometimes arises when one parent applies for a restraining order against the other parent in a state or territory, at the same time as they are applying for parenting orders about how children from the relationship will be raised in the Federal Circuit and Family Court of Australia (FCFCOA).
Under Australia’s Family Law Act, an application for parenting orders requires the parties to first participate in family dispute resolution to try and come to an agreement about their children.
This can be difficult or ill-advised if one parent is applying for a restraining order against the other parent, or protection orders are already in place. The FCFCOA refers to all such orders made in states and territories as ‘family violence orders’.
In this situation, a family dispute resolution practitioner may decide that mediation is inappropriate for the parents and relieve them of the obligation to allow the application to proceed to court.
In other circumstances, an exception may be made to the conditions of the protection order to allow family dispute resolution about the children to proceed. This does not necessarily mean the parties will come face-to-face in a mediation session, particularly if there is a genuine threat of domestic violence by one party towards the other, but that a process of mediation is conducted at arm’s length to try and resolve differences about the parenting of the children.
Involved in a Parenting Dispute?
If a family violence order is in place between parents, the FCFCOA must be told about the order when parenting orders are applied for.
These types of protection orders may affect the orders the Court makes, including parenting orders relating to a child spending time with a parent or another person.
In some cases, the Court may make an order that the offending parent can only spend time with their children under supervision (by another family member, for example, or at an agreed location).
If the Court makes a parenting order that is inconsistent with the family violence protective order, it must state which part/s are different and explain exactly the conditions under which the children will spend time with the respondent.
Speak to family dispute resolution experts
For further questions or guidance on taking out restraining orders against another person as a result of a domestic or family relationship, speak with specialist family law experts to understand your rights and responsibilities.
At Mediations Australia our professionals help people during the difficult period where family and domestic violence may be present or threatened at the same time as they are seeking a way forward on the parenting of children with an ex-partner.
Maintaining personal safety while trying to reach a better, more secure place beyond the relationship can be a very challenging time. We will help you get there with the right advice.