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Obtaining an intervention or restraining order

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Important introductory information on obtaining an intervention or restraining order
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia

Introduction

If there is a continuing threat of violence or intimidation against persons or property damage, you may need to consider seeking an intervention or restraining order. The purpose of an intervention order is to protect the safety of the victim. Its effect is to restrict the perpetrator’s behaviour in relation to the victim. In some circumstances the order may also restrict the perpetrator’s ability to go to the vicinity of the victim’s place of work or residence. The orders can be obtained without disclosing the victim’s address.

The legislation governing intervention orders varies from state to state.

Generally, if you have a concern of continuing threatened violence, this should be raised with the police and their assistance sought in obtaining an order at the time of the complaint and followed up if necessary.

Intervention orders are generally granted only if a Court is satisfied that it is necessary to restrict the defendant's future behaviour in relation to the aggrieved person.

An intervention order limits certain types of behaviour, for example, what a person can do or where they can go. An intervention order may prohibit or restrict a person from:

• behaving offensively towards the aggrieved person;
• approaching (or going near) an aggrieved person;
• attending at premises where an aggrieved person lives, works or frequents;
• being at a particular location;
• contacting, harassing, assaulting, stalking, threatening or intimidating an aggrieved person;
• damaging property owned by an aggrieved person; and
• causing another person to engage in conduct that is prohibited by the intervention order.

The available information and forms of protection vary from State/Territory and are detailed below.

Australian Capital Territory

In the ACT, it is necessary to apply for a Personal Protection Order under the Protection Orders Act 2001 as amended by the Domestic Violence and Protection Orders Amendment Act 2005. This is done through the local Magistrate’s Court.

Applicants will need to complete an application form, and affidavit and a further confidential form. The Magistrate can grant interim orders, until a hearing is held and a Final Order granted.

The assistance of the police should be enlisted for the purpose of seeking an order.

Further information is available at

	Victim Support ACT [Accessed 21 November 2008]
	Legal Aid Commission (ACT)

New South Wales

A general practitioner or member of their practice staff needs to obtain an Apprehended Personal Violence Order (APVO), as opposed to a domestic violence order.

There are two pathways to obtaining the order:

• Go to the local court, report the incident and then ask to have the case heard to obtain the order
• Go to a police station, ask to speak to the Domestic Violence officer and they will get the process under way.

If a threat is imminent (e.g. a patient is in the practice or consulting room) contact the police in the first instance. The police can remove the offending party and then, if there are grounds, the GP can apply for an APVO.

Further information is available from:

Legal Aid New South Wales [Accessed 21 November 2008]

Northern Territory

In 2008, new legislation came into force in the Northern Territory, providing for the creation of Personal Violence Restraining Orders.

More information (including the relevant forms) is available at:

Northern Territory Magistrates Courts [Accessed 21 November 2008] (Search ‘personal violence’)

Queensland

General practitioners can access a restraining order under the Peace and Good Behaviour Act.

General practitioners (and/or their staff) need to file a complaint with their local court under this Act - costs about $60 and generally covers the summons fee;

If the complaint is substantiated the court issues a summons (the GP can serve the summons but it is more likely a Bailiff or the GP's solicitor will do this);

Once the summons is served a court date is set and both parties should attend - although the GP could opt to be represented (e.g. by their solicitor);

At the court hearing the Magistrate can issue an order for peace and good behaviour (or request a mediation process) - any number of recommendations can be made on this order and it is generally good for 12 months.

The police can't actually do anything unless an offence is committed - but they can act if the Peace and Good Behaviour order is violated.

Further information is available at:

	Department of Justice and Attorney-General [Accessed 21 November 2008]
	Applying for protection under the Peace and Good Behaviour Act

South Australia

The complaint (either GP or staff member) needs to provide details of 2 occasions in the past 6 months where the individual acted in a threatening manner, harassed, assaulted, was verbally abusive, intimidating, left offensive material, entered private property, or kept the property under surveillance.

It is not necessary to prove past behaviour, as an application for a restraining order is based on the person having a reasonable apprehension of fear. It is also possible for the police to obtain a restraint order by telephone in urgent situations.

A complaint should be made to the police, who will apply to the court on behalf of the complainant. In urgent situations applications can be made by telephone.

Restraining orders made interstate may be registered in South Australia giving the order the same effect as an order made in South Australia

Further information is available from:

SA Law Hanbook site [Accessed 21 November 2008] (search ‘restraining’)

Tasmania

People who want a restraint order in Tasmania need to apply to the Clerk of Petty Sessions at the Magistrates Court. If an urgent restraint order is needed, you will need to be able to explain why.

A restraint order can issue made against a person who has:

• caused personal injury or damage to property; and unless restrained, is likely to do this again
• threatened to cause personal injury or damage to property; and unless restrained, likely to carry out that threat
• behaved in a provocative or offensive manner; likely to lead to a breach of the peace; and, unless restrained, is likely to do this again
• stalked the applicant; or has stalked someone else, causing the applicant apprehension or fear.

The justices must consider the protection and welfare of the applicant to be of paramount importance.

The sorts of orders that can be made include:

• an order directing the person to vacate premises, restraining that person from entering premises, or limiting that person's access to premises, whether or not that person has a legal or equitable interest in the premises
• an order prohibiting or restricting the possession by the person against whom the order is made of all or any firearms or directing the forfeiture or disposal of any firearms in their possession;
• an order prohibiting the person against whom the order is made from stalking the applicant.

Magistrate's Court Tasmania Application for a Restraint Order [Accessed 21 November 2008]

Victoria

To obtain an Intervention order in Victoria takes 3 steps:

1. The person seeking the Intervention order contacts the closest magistrates office, speaks with a court registrar and fills in an application form.
2. The police notify the Defendant about the complaint.
3. The magistrate has a court hearing and decides whether to make the order.

Information about the process involved in seeking an Intervention Order in Victoria may be obtained from:

	Magistrates’ Court of Victoria [Accessed 21 November 2008] (search ‘intervention order’)
	Victoria Legal Aid [Accessed 15 January 2009]

Western Australia

An intervention/restraining order form can be obtained either through the police who may apply to a Magistrate for an order by telephone in exceptional circumstances.

The local police can also issue a 24-hour temporary restraining order in extraordinary cases while the main application is going through.

The application is then lodged through the courts and is usually approved within 48 hours and the police serve the restraining order.

There is no need to get a lawyer if the application is straightforward unless there are any doctor-patient confidentiality issues involved.

Further information is available from:

	Western Australia Police [Accessed 21 November 2008]
	Department of the Attorney General (WA)

If you have additional information, or believe the following information to be inaccurate or out-of-date, please bring this to the attention of the RACGP at (03) 8699 0414 or racgp@racgp.org.au

Last Modified: 27 November 2008
Authorised By: GP Advocacy and support