A restraining order prohibits a person from engaging in certain types of conduct as concerns another person or group of people. A breach of a restraining order may result in a person being charged with a criminal offence. The penalties for breaching a restraining order include immediate imprisonment. Accordingly, when an application for a restraining order is made against you, it is important to get an experienced criminal lawyer in Melbourne to help you understand what is involved.
A restraining order is referred to by various different names and they are often used interchangeably. The names most commonly used are:
- an intervention order (IVO) – which is widely used in Victoria;
- an apprehended violence order – which is used in some states outside of Victoria;
- a domestic violence order;
- a family violence order, or
- a personal safety order.
Restraining orders vary in the scope of the conduct that they prohibit. Some simply prohibit family violence, others will prohibit many other behaviours including having contact with a particular individual or group of people.
In Victoria, there are two types of restraining orders. Family Violence Intervention Orders (FVIO) and Personal Safety Intervention Orders (PSIO). A person can apply for a restraining order if they are the victim of an offence, multiple offences or ongoing problematic behaviours that are prohibited under either the Family Violence Protection Act (2008) or the Personal Safety Intervention Order Act (2010).
If you are accused of assault or threatening violence in a domestic setting, the police investigating the matter nearly always apply for a restraining order on behalf of the person you are accused of assaulting or threatening and any children who were present when the alleged incident occurred. Restraining orders can also be applied for by the person you are accused of assaulting themselves.
On an application by either the police or the person making the allegation against you, you can either consent to the order being made against you without admitting the allegations or contest the application.
If you contest the application and a court ultimately finds, on the balance of probabilities, that you have assaulted or threatened someone and further that there is an ongoing threat to the safety of that person then they will put an order in place against you for a period of time, usually ranging from one to two years, but in many instances longer and in some instances indefinitely.
The effects of a restraining order
If a restraining order has been made against you, you will be prohibited from engaging in certain activities and behaviours. At the very least it will prohibit you from committing family violence against a protected person. It may also prohibit you from:
- communicating or contacting a protected person by any means;
- attempting to locate, follow or keep a protected person under surveillance;
- publish on the internet, by email or other electronic communication any material about the protected person;
- approaching or remaining within a certain distance (usually 5 meters) of a protected;
- being at or within a certain distance (usually 200 meters) of a protected person’s home, workplace, school or childcare centre;
- damaging the property of a protected person or threatening to do so; or
- causing another person to do any of the things prohibited by a restraining order on your behalf .
Beyond these matters a restraining order may also prevent you from continuing to hold or applying for a gun licence, and if you own any guns, they will be seized by the police at the time they determine to make an application for a restraining order against you or shortly thereafter.
A restraining order is a civil order. Accordingly, having an order put in place against you will not be recorded on your criminal record. However, if you breach it and the breach is reported to the police you will be charged with an offence.
What could happen to me if I breach a restraining order?
The maximum penalty for breaching a restraining order on one occasion is two years imprisonment.
Should you breach a restraining order on multiple occasions within 28 days you are likely to be charged with persistently breaching it. The maximum penalty for this type of offending is five years imprisonment.
Obviously enough there are a variety of circumstances in which these offences can occur ranging from sending a person a text message in breach of a condition of their restraining order to severely assaulting a person in breach of a condition of their restraining order. Despite the maximum penalties it is therefore the case that less serious or moderately serious examples of breaching a restraining order may be dealt with by way of a good behaviour bond, a fine or a community corrections order. In some instances such penalties will be imposed without conviction.
Whether you are at risk of imprisonment or a prospect of receiving a without conviction penalty will depend on the nature of your breach, your personal circumstances and whether or not you have a prior criminal history.
If you are the respondent to an application for a restraining order it is important that you understand what your options are, the court’s processes and how the decisions you make will impact on you (particularly if you are facing or may later face criminal charges). In such a setting you should seek advice from criminal lawyers in Melbourne experienced in dealing with cases involving restraining orders.
They will inform you of the options available to you, your prospects of successfully defending the application against you, the potential implications of defending the application, (where required and possible) negotiating the terms of the restraining order, preparing your matter for court and finally appearing on your behalf at court.
Getting the right legal assistance will give you the best chance of receiving the best possible outcome.
For criminal lawyers in Melbourne, experienced in both defending and applying for restraining orders, contact the team at Stary Norton Halphen.