Restraint or Protection Orders
Restraint or Protection Orders are put in place to restrict contact between people, or impose conditions on the behaviour of one person towards another. In Tasmania, these orders are called Restraint Orders, however they are called Protection Orders in some other states and territories of Australia.
The person who applies for the restraint order is known as the Applicant, and the person who is to be restrained is known as the Respondent.
An Applicant can apply for a Restraint Order, but it can only be put into effect by a Magistrate.
Restraint Orders are made where a Magistrate determines that the Respondent has committed an act of personal violence against the Applicant, or that there is a risk of it occurring. In considering whether to make an order, the Magistrate must consider the safety of the Applicant, the previous criminal history of the Respondent, and the previous conduct of the Respondent towards the Applicant as well as any child affected by the personal violence.
Personal violence can include many forms of threats or harassment, such as:
- physical violence or abuse;
- sexual abuse;
- psychological abuse such as humiliation and intimidation;
- damage to property or trespass;
- provocative or offensive behaviour likely to lead to a breach of the peace; or
- threats or threatening behaviour and harassment.
Many of the above types of behaviour are also offences and should be reported to the police immediately.
The Respondent must be likely to:
- cause the same or similar injury or damage;
- carry out a threat; or
- behave in the same or similar provocative or offensive manner.
Urgent applications may be heard within days from when the application is lodged. In order to have an urgent hearing there must be a high level of risk, and it is heard in the absence of the Respondent.
Applying for a Restraint Order
You can apply for a Restraint Order by filling in an application form and filing it at the Magistrates Court. The police also have the power to apply for a Restraint Order on behalf of a person.
A Restraint Order application form can be obtained from the Magistrates Court website.
The form can be filled in by the Applicant themselves or with the assistance of a solicitor, friend or support worker if the Applicant agrees.
The application must contain as much information as possible so that the Magistrate can be satisfied that the person the Applicant wishes to restrain has committed the acts and that they are likely to commit them again in the future.
Restraint Orders are generally used against people who will only stop doing the offending acts if a court tells them to.
Restraint Orders can be applied for in situations where there is a neighbourhood dispute or the behaviour is between children and parents, siblings, friends or acquaintances. If you are in an intimate relationship or have been you can apply for a Family Violence Order.
What happens after filing an application for a Restraint Order?
After you have filed your application, the form needs to be given to (‘served on’) the Respondent (the other party).
Interim Orders can be made by the Magistrate before the Respondent is served with and notified of the application, but the applicant will be given a return date to the magistrates courts and will have to organise to have the application (and the interim order) served on the Respondent before the next date. This is so the Respondent is put on notice, and has an opportunity to attend court too.
The application is normally served on the Respondent by a process server, an adult over 18 years of age, or by a police officer. There is a fee involved in using a process server. If you fear for your safety, or fear violence from the Respondent then you should ask the police to serve your application.
The Court may order that you attend a conciliation conference with the other party.
A conciliation conference is a form of mediation which provides an opportunity for parties to make a genuine effort to settle their disputes with the assistance of an independent conciliator. Reaching an agreement during the conciliation conference will save the need for further court time.
In place of a Restraint Order, the parties may agree to an undertaking. An undertaking is a formal pledge or promise to do or stop doing something. It is not enforceable in court however it is like a promise to the court and the other party.
The Respondent can offer the Applicant a written promise as assurance, placing conditions on their behaviour. The parties may elect to have it adjourned in order to proceed with an undertaking. If you break that promise, or undertaking (this is called a breach), the court will be unimpressed with you the next time you appear before them. If an undertaking is breached, the application for a Restraint Order can be brought back to court.
Sometimes the outcome of a Conciliation Conference is an agreement that a Restraint Order should be made. The parties can agree to this without admitting to the contents of the application or response to the application (this means that both parties agree to put the Restraint Order in place, even if they don’t agree with what the other party says happened).
If you do not come to an agreement, the application may proceed to a hearing. The Magistrate will decide whether to grant an order or not and in what terms.
Conditions on a Restraint Order
There are various conditions which can be written into a Restraint Order. These include limiting the contact between the parties, and preventing the Respondent from:
- assaulting or threatening the Applicant;
- stalking the Applicant;
- acting in an offensive manner;
- contacting or approaching the Applicant at home or work;
- damaging property; or
- possessing firearms.
Breaches of a Restraint Order
When the Respondent does something that ignores the conditions of the Restraint Order, this is called a breach. Breaching a Restraint Order is an offence, and if the Respondent breaches the Restraint Order, the Applicant should contact the police. The penalty for breaching a Restraint Order can be a large fine, or imprisonment.