If you are being harassed by another person, a restraining order can help provide you with protection. A restraining order legally prevents that person from contacting you.
The definition of harassment
Harassment has a legal definition. Under the Harassment Act 1997, it is defined by "specific acts" which have happened on at least two separate occasions within a period of 12 months.
These acts could include:
- following a person
- entering someone's property without their permission
- harassment through phone calls or letters
- giving offensive material
- doing something that makes someone fear for his/her safety.
Who can apply
If you are in a "domestic relationship" with the person who is harassing you, you will have to apply for a protection order instead of a restraining order.
Legally, you are in a domestic relationship if:
- you are the partner of the other person (including a same sex partner)
- you are a family member of the person
- you share a household with the other person (excluding a landlord/tenant or a employer/employee)
- you have a close personal relationship with the person harassing you (this does not have to be sexual).
For more information about applying for a protection order, please go to the Family Court website.
If you want to apply for a restraining order and you are under 17 years old, you must have someone to represent you, unless you are married.
No application can be made against a person under 17 years old, unless they are married, in a civil union, or in a de facto relationship.
If you are unable to act for yourself, you can ask someone to act for you. You may hire a lawyer to represent you if you wish.
The order will relate only to the person who is harassing you. If more than one person is involved, you can apply for protection from them as well.
You can also apply for other people to be protected, such as your children.
Applying for a restraining order
If you are being harassed or have been harassed by someone, you can apply to the District Court for a restraining order.
In the District Court, the person who applies for the order is called the applicant, and the person who the order is against is called the respondent.
To apply, you must file three documents:
- Application for restraining order: This application form explains what you are asking the court to grant you. The Registrar will add the date of the hearing.
- Affidavit in support: This affidavit explains why you think a restraining order should be granted. You should list the specified acts with dates and times (be as specific as possible). This should show at least two separate examples where harassment has occurred within a 12-month period (see page 4 of the application form). See the supporting affidavit for more information.
- Notice of proceeding: This notice tells the respondent that an action has begun. The "notes for respondent" page should be kept with the notice of proceeding when it is served on the respondent.
You must file these documents in the court closest to where you or the respondent lives, or the closest court to the address for service of any of the applicants, or, with the written consent of all respondents, any other court.
The court can provide you with all the required forms. You will have to sign the documents in front of a Justice of the Peace or deputy registrar, who will witness them. You are encouraged to seek legal advice.
There is no filing fee for restraining orders.
The supporting affidavit
Your supporting affidavit must contain the following information:
- the grounds upon which the application is based
- the facts upon which you rely
- the nature and history of the harassment you allege the respondent has engaged in
- an outline of the current situation or most recent incident
- details of contact with the police about the behaviour from which protection is sought
- the reasons why any special conditions in the restraining order are necessary
- the way in which the respondent has encouraged the associated respondent (where an associated respondent has been named in the application)
- the nature and history of the harassment you allege the associated respondent has engaged in.
The hearing for the application
The judge decides whether a restraining order is appropriate. The judge will take into account all of the circumstances in making a decision.
Applications are treated with urgency. However, the hearing date needs to allow enough time prior to the hearing for the respondent to be served with the documents before the hearing. These documents are normally served by a court bailiff.
You will need to appear at the hearing to support your application. If you do not attend the court hearing, it is likely that your application will be dismissed. If the respondent defends the case, you may have a defended hearing (which means that the judge hears from both sides and makes a decision) or you may be asked to provide additional information to the court by affidavit.
You are encouraged to seek legal advice.
Duration of restraining orders
Restraining orders remain in force for one year. However, the court may direct that the order remain in place for a specific period of time, depending on the circumstances.
Conditions attached to the order
The standard conditions specified in a restraining order are that the respondent (the person who the order is against) must not:
- do or threaten to do any specified act to you or any other person for whose protection the order is made; or
- encourage anyone else to do any specified act to your or any other person for whose protection the order is made, where the specified act, if done by the respondent, would be prohibited by the order.
You may apply for special conditions to be imposed to protect yourself from further harassment. Conditions can include orders to:
- prevent the respondent from entering property
- prevent the respondent from coming within a specified distance from you, your family or property.
Breaches of restraining orders
If a restraining order has been made, it is an offence to breach it or any of the conditions made by the judge. The penalty is a maximum term of imprisonment of six months or a fine of $5000.
However, if the person has two previous convictions for breaching a restraining order that applies to the same person in a three-year period, then the penalty is a maximum of two years in prison.
As the applicant, you can keep your address confidential by filling out an additional form, which is available from the court. The court will have a record of the address but the respondent (the person who the order is against) will not get a copy.
People who have a restraining order have the option of not having their names published on the electoral roll. See the pamphlet Everything you need to know about the Unpublished Electoral Roll for more information. A copy of this pamphlet is included with any restraining order issued.
For more information about restraining orders, talk to your lawyer or your local court. You can also talk to community law centres, legal aid and citizens advice bureaux, which are available to assist people in accessing free legal advice.