Applying for a restraining order
You can apply for a restraining order if you are being harassed by someone and fear for your safety. October 2009.
What is “harassment”?
Harassment has a legal definition. The Harassment Act 1997 defines it as “specific acts” which have happened at least twice within 12 months.
These acts could include:
- following a person
- entering someone’s property without their permission
- harassment through phonecalls or letters
- giving offensive material
- doing something that makes someone fear for his/her safety.
You can apply for a restraining order if you are being harassed by someone and fear for your safety.
What does it mean to have a restraining order?
If you are being harassed by someone,a restraining order will legally prevent that person from contacting you.
The restraining order can also be used to protect your children if you are worried about their safety.
The order will apply only to the person who is harassing you. If there is more than one person involved, you can apply for protection from them as well.
Can anyone apply?
Not everyone can apply for a restraining order – there are some restrictions.
For example, you can only apply for a restraining order if you are over 17 years old, unless you have someone to represent you or you are married.
You also cannot apply for a restraining order against someone who is under 17 years old, unless they are married, in a civil union or in a de facto relationship.
If you are, or have been, 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 (not including 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: www.justice.govt.nz/family
What do you have to do?
Fill in the three forms
Sign the forms in front of a Justice of Peace or Registrar at court
File the forms at your local District Court
You will be sent the date of the court hearing
Attend the hearing. If you don’t attend, your application may be dismissed
The judge will make a decision
If the judge rules in your favour, a restraining order will be made to protect you
Applying for a restraining order
You will need to apply to the District Court for a restraining order.
When you apply for the order you will be called the applicant, and the person you are making the order against will be called the respondent. You will both be called the parties.
You are encouraged to seek legal advice before applying for a restraining order.
Fill in the forms
To apply, you must fill in three forms:
- Application for restraining order – this application form explains what you are asking for from the court. The Registrar will add the date of the hearing.
- Affidavit in support – this affidavit explains why you think you should be given a restraining order. You should list specific acts with dates and times. This should show at least two separate examples where harassment has happened within the last twelve months.
- Notice of proceeding - this notice tells the respondent that an action has begun and explains how they can defend it.
Sign the forms
You will have to sign the documents at the court in front of a Justice of Peace or a Deputy Registrar, who will act as a witness.
File the forms
You must file the forms in the District Court. This could be the one closest to where you or the respondent lives, the court closest to your postal address or theirs, or, with the written consent of all respondents, any other court.
The court can provide you with all the available forms or you can download them from our website: www.justice.govt.nz/civil
There is no fee for filing the forms.
The court hearing
The judge will decide whether to grant a restraining order. The judge will take into account all of the circumstances in making the decision.
If you apply for an order but don’t go to the court hearing, your application may be dismissed. If you can’t act for yourself, however, you can ask someone to act for you, such as a lawyer.
If the respondent (the person who the order is against) defends the case, you may have a defended hearing, which means that the judge hears from both sides and then makes a decision. The case might need to be adjourned to another date for this defended hearing. You may also be asked to give more information to the court by affidavit. You are encouraged to seek legal advice.
How long will the restraining order last?
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.
Breaches of restraining orders
If a restraining order has been made, it is an offence to break 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 $5,000.
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.
Protecting your privacy
The court will have a record of the address but the respondent (the person who the order is against) will not get a copy of it.
People who have a restraining order can also choose not to have their names published on the electoral roll. The pamphlet Everything you need to know about the Unpublished Electoral Roll is included with any restraining order issued.
You can talk to legal aid, a community law centre or a citizens advice bureau if you need help or advice about applying for a restraining order.
Community Law Centres: www.communitylaw.org.nz
The Legal Services Agency: www.justice.govt.nz/services/getting-legal-aid
Citizens Advice Bureau: www.cab.org.nz
New Zealand Law Society: www.lawsociety.org.nz
Contact us for more information about applying for a restraining order:
Telephone: call your local court. It is listed under Justice, Ministry of in the blue pages of your telephone book.
courts/202 - October 2009