What is a Restraining Order

A restraining order is a legal safeguard designed to protect individuals from potential harm, harassment, or abuse. Typically issued by courts in cases of domestic violence or stalking, these orders restrict the actions of a person deemed to pose a threat. In Australia, the terminology varies across states and territories, with ‘restraining order’ being the specific term used in Western Australia. Elsewhere, they might be known as protective orders or intervention orders, but all serve the same fundamental purpose: to provide legal protection for those at risk of harm from others.

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.

APVO vs ADVO: Key Differences in Protection Orders

In the Australian legal system, Apprehended Violence Orders (AVOs) serve as crucial protective mechanisms. These orders come in two distinct forms: Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). Understanding the differences between these orders is essential for both those seeking protection and those served with an order.

Defining the Relationship

The primary distinction between an ADVO and APVO lies in the relationship between the parties involved:

ADVO (Apprehended Domestic Violence Order)

• Applies to people in domestic or family relationships
• Covers current or former intimate partners
• Includes family members and relatives
• Extends to people living in the same household

APVO (Apprehended Personal Violence Order)

• Applies to people without domestic relationships
• Covers neighbors
• Includes work colleagues
• Applies to any other non-domestic relationships

Legal Grounds and Requirements

Both orders require specific grounds for application:

ADVO Requirements:

• Reasonable grounds to fear domestic violence
• Evidence of intimidation or harassment
• Proof of a domestic relationship
• Demonstration of ongoing safety concerns

APVO Requirements:

• Reasonable grounds to fear personal violence
• Evidence of stalking or intimidation
• No requirement for a domestic relationship
• Clear pattern of concerning behavior

Application Process

The process for obtaining either order varies:

ADVO Process:

• Can be initiated by police (common in domestic situations)
• Applications often processed more quickly
• Interim orders more readily available
• Strong focus on immediate safety measures

APVO Process:

• Usually requires personal application
• May need more substantial evidence
• Generally takes longer to process
• Often requires mediation before court hearing

Protective Measures

Both orders can include similar protective conditions:

• Prohibiting approach to residence or workplace
• Restricting contact and communication
• Preventing harassment or intimidation
• Establishing specific distance requirements

Legal Implications

Understanding the consequences is crucial:

For Protected Persons:

• Immediate legal protection
• Police enforcement support
• Clear documentation of protection needs
• Legal recourse if order breached

For Defendants:

• Impact on employment opportunities
• Potential firearms license restrictions
• Travel limitations
• Criminal record if order breached

Duration and Modifications

Both types of orders can be:

• Temporary (interim orders)
• Long-term (final orders)
• Modified if circumstances change
• Extended if necessary

Enforcement and Breaches

Both ADVOs and APVOs carry serious consequences if breached:

• Criminal charges possible
• Maximum penalty of 2 years imprisonment
• Fines up to $5,500
• Criminal record upon conviction

Seeking Legal Advice

Whether applying for or defending against either type of AVO, professional legal guidance is crucial:

• Understanding rights and obligations
• Navigating court procedures
• Preparing necessary evidence
• Making informed decisions about consent or contest

When are restraining orders necessary?

A restraining order becomes necessary in situations involving family violence or when an individual fears personal violence from another person. These protective measures are crucial in safeguarding individuals from potential harm and creating a legal barrier between the victim and the perpetrator.

Family violence encompasses a wide range of abusive behaviors that go beyond physical altercations. Generally speaking, family violence includes:

• Acts of physical violence against a partner or children, such as striking or pushing
• Sexual, emotional, or psychological abuse, including controlling behaviors like restricting social interactions or movements
• Any other behavior that coerces or controls a family member or causes them to live in fear, including financial abuse or technological abuse

In the context of a restraining order, the definition of a family member can be quite broad. It can include spouses, de facto partners, siblings, children, parents, grandparents, step-children, and other relatives. Additionally, it may extend to others who are in intimate or family-type relationships, recognizing that family structures can be diverse and complex.

How do I get a restraining order

When it comes to Family Violence Restraining Orders (FVROs), the court follows a specific set of criteria to determine whether such an order should be issued. The court will make such an order provided it is satisfied that the person who will be subject to its conditions meets certain requirements.

The court considers whether:

• The respondent has committed family violence against the applicant and is likely to commit family violence against them in the future
• The applicant, or those applying on their behalf (such as the police), have good reasons to fear that the respondent will commit family violence
• Children need protection from being exposed to, seeing, hearing, or experiencing the effects of family violence

The application process for a restraining order involves several steps. Initially, the applicant needs to fill out a form providing comprehensive details. This includes information about the person seeking protection, the details of the person the order is sought against, the nature of their relationship, and the specific grounds for making the application.

This application form can be obtained from various sources to ensure accessibility:

• Magistrates’ courts
• Police stations
• Online resources

Once the application is submitted, the court will set a hearing date as soon as possible. In many cases, particularly where there’s an immediate threat of harm, the court may make an interim FVRO ahead of a final hearing. This provides immediate protection while the full case is being prepared.

After an interim FVRO is issued, the respondent has 21 days to respond once they’ve been served with the order by the police. If the respondent fails to respond within this time limit, the FRVO automatically becomes final and remains in place for two years.

In cases where the person who is the subject of the order objects to its imposition, the matter will proceed to a final hearing. During this hearing, both sides have the opportunity to present their case before a magistrate. After considering all the evidence, the magistrate will decide whether to make a final order, which typically lasts for two years but can be extended if necessary.

Throughout this process, it’s important for both parties to understand their rights and responsibilities. Seeking legal advice or support from domestic violence services can be invaluable in navigating this complex and often emotionally charged process.

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.

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, including guidance on obtaining a restraining order if necessary for your protection.