Relationship difficulties and breakdowns are a sad reality of modern life. Difficulties can arise in any relationship – with your spouse or partner, your ex, children, colleague, even your flatmate.
Tragically, relationship breakdowns can sometimes involve actual or threatened violence. At such times, some people “lose their cool”, while others routinely use intimidation or violence to control another person. Occasionally, one person thinks they may gain an advantage by untruthfully alleging violence by another person.
If you find yourself in such a situation, can you get help? Maybe someone claims you have been violent towards them and has sought a restraining order against you. What do you need to do?
Family and personal violence
The Courts and the Police take family and personal violence seriously.
Family violence is defined very broadly to include assault, personal injury, kidnapping or depriving someone of their freedom, property damage, killing or harming an animal, conduct that is intimidating, offensive or emotionally abusive, or threatens violence, or engages in behaviour that coerces or controls or causes fear, where such behaviour is directed towards someone with whom the perpetrator is in a family or domestic relationship.
You are considered to be in a family relationship with someone if that person is or was your spouse, de facto or other intimate partner, a child who ordinarily lives or regularly stays with you, or any other relative.
Personal violence refers to assault, personal injury, kidnapping or depriving someone of their freedom, pursuing another person in order to intimidate them, or threats to do those things, where such behaviour is directed towards someone with whom the perpetrator is not in a family relationship.
The Restraining Orders Act sets out a regime to protect someone who fears or has experienced family or personal violence.
Family or domestic violence – Police orders
In the first instance, in the case of family violence, the police could issue a Police Order, to provide the victim with immediate protection from the alleged perpetrator, while imposing the least possible restrictions on the alleged perpetrator’s rights and freedoms. A Police Order can only remain in force for a maximum of 72 hours.
Violence restraining orders
You, or a police officer on your behalf, if they agree, can apply to the Court for a Violence Restraining Order if you have experienced family or personal violence and/ or you reasonably fear that such violence will be perpetrated against you.
If granted, a Violence Restraining Order could prevent the perpetrator from:
- committing violence against the victim or exposing a child to such violence;
- remaining in or entering the victim’s home, workplace, school or other specified place, even if the perpetrator is the owner or legal tenant of those premises;
- approaching, communicating or attempting to communicate with the victim;
- taking possession of or preventing the victim using property needed by the victim, even if that property is owned by the perpetrator;
- causing someone else to do such things to the victim;
- retaining firearms; and/or
- holding a firearms’ licence.
In cases where a duration is not specified, a Violence Restraining Order will remain in place for 2 years.
A Violence Restraining Order can be made against a minor child, 10 years of age or older. However, the Court will only grant a Violence Restraining Order against a child if the Court is satisfied that there are appropriate arrangements for the child’s care and wellbeing. In most cases, a Violence Restraining Order against a child will not remain in place for more than 6 months.
Misconduct restraining orders
In circumstances where the perpetrator’s behaviour does not meet the definition of family violence and where the perpetrator and victim are not in a family relationship, a remedy may still be available. A Court may make a Misconduct Restraining Order when it finds that the perpetrator is likely to damage property owned by the victim, engage in intimidating or offensive conduct towards the victim, or commit a breach of the peace.
What about parenting orders?
When granting a Restraining Order, a Court takes into account any parenting orders which may be in place. If no Family Court parenting orders are in place, when considering granting a Restraining Order the Court may include conditions in the Restraining Order about how the perpetrator may spend time with a child.
What happens if the restraining order is breached?
It is an offence to breach an Order under the Restraining Orders Act. The maximum penalty for breaching a Violence Restraining Order or Police Order is a fine of $6,000, two years’ imprisonment or both. The maximum penalty for breaching a Misconduct Restraining Order is a fine of $1,000. More serious penalties apply for repeated breaches.
Can I defend an application against me for a restraining order?
Yes. You may want to challenge an application against you for a Restraining Order, if, for example, your version of what occurred differs from that of the alleged victim. It is also possible to appeal a Court’s decision to grant such an Order.
Conclusion
Today, the Courts and police take the issue of family and personal violence very seriously. The definition of such violence is very broad, as is the range of prohibited conduct which could give rise to a Restraining Order. Breaches of such Orders are also treated seriously, and the Court has the power to impose a range of significant penalties, including imprisonment.
If you or someone you know wants more information or needs help or advice, please contact our family lawyers on 08 9221 5775 or email enquiries@klimekwijay.com.