Restraining Orders - a Guide for Beginners

There are two kinds of restraining orders - Misconduct Restraining Orders (MROs) and Violence Restraining Orders (VROs).

MROs and VROs are used frequently in circumstances where one has a problem with another’s behaviour. The following guide provides some general information for those who may have an interest in either bringing a restraining order against another, or defending a restraining order brought by a third party against you.

MROs and VROs generally – what are they?

Put simply, restraining orders are used to protect against another party’s future conduct.

VROs are often sought in the context of family or domestic relationships (but are also available when the parties are not in such a relationship). To bring a VRO, the critical requirement is the existence of a form of threatened or actual violence. Acts of family and domestic violence are defined in the Restraining Orders Act 1997 to include:

• assaulting or causing personal injury to the person;
• kidnapping or depriving the person of his or her liberty;
• damaging the person’s property, including the injury or death of an animal that is the person’s property;
• behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;
• pursuing the person or a third person, or causing the person or a third person to be pursued:
  • with intent to intimidate the person; or
  • in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;
• threatening to commit any act described in the first 3 points above.

MROs are available in situations where there are no family or domestic relationships between the parties. Behaviour which can form the basis for an MRO include acts that are intimidating or offensive to another person, or can be used to stop a person causing damage to the property of the other party.

How the Court deals with Restraining Orders

Not all restraining order applications result in a full blown Court hearing. For example, matters can often be settled by the parties.

You might settle the matter by undertakings made by either or both parties in relation to future conduct, in which case the Court will make an order with the consent of both parties. It may be that the application for a restraining order will be dismissed upon the court accepting the undertakings entered into between the parties. Alternatively, the actual restraining order application can also be adjourned indefinitely and can be re-listed on the application of either party in the event of breach of the undertaking.

A typical undertaking will be in terms such as:

” without admission of having done anything wrong in the past, the party or parties undertake not to have contact by any means, or be near the other person or their home or place of work….”

Undertakings can be worded to cover most situations. If, on the other hand, the application is not settled by way of consensual undertakings, the VRO or MO application will proceed to trial. At trial, the Court will hear evidence from the applicant and any witnesses called by the applicant, followed by evidence from the respondent and any witnesses called by the respondent. The Court will subsequently hear evidence from the respondent and any witnesses, before making a decision based on all the evidence presented.

The successful party in an MRO hearing can apply to the Court for legal costs to be paid for by the other party. A successful applicant in a VRO hearing can also apply for legal costs to be paid by the respondent. However, if a respondent to a VRO succeeds in defending the application, there would have to be extraordinary circumstances for that respondent to obtain a costs order against an applicant – an example would be if the Court determined that there was no good reason for the applicant to bring the VRO application in the first place.

Breaching a restraining order

A restraining order once made, will prevent the person bound from doing certain things. It is important for both parties to read the restraining order carefully. If the person bound does something which the restraining order says they cannot do, they will strictly speaking, be in breach of the order. This, in turn, may have serious consequences such as that person being reported to the police and charged accordingly.

A person accused of breaching a restraining order can either plead guilty and be dealt with by the court or plead not guilty and have a trial on the charge. If an accused either pleads guilty to a charge or is found guilty after a hearing, the following penalties apply.

• A person who is bound by a VRO and who breaches that order is liable to a fine of up to $6,000 or imprisonment for 2 years or both.
• A person who is bound by an MRO and who breaches that order is liable to a fine of up to $l,000.
• If a person is convicted of an offence of breach of VRO and has at least 2 offences of breach of VROs within a period of 2 years, he or she is liable to be sentenced to imprisonment unless imprisonment would be unjust given the particular circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of a person protected or the community generally.

Going forward

The guide above contains general information only, and we recommend contacting EMS Legal for clarification and specific advice. EMS Legal can assist all who are considering applying for an MRO/VRO, or are wishing to defend an application for an MRO/VRO.