Many people going through a relationship breakdown want a Court order restraining or stopping their former spouse or partner from doing something. Those circumstances include:
- personal protection of that party or the children
- sole occupation of the former home
- protection of property.
While parties often want a restraining order, such orders are not appropriate in every case. The Court is strict about the evidence needed to obtain a restraining order.
Sadly, relationship breakdowns can sometimes involve actual or threatened violence. At a time when emotions are running high, some people “lose their cool” or use intimidation or violence to control the other person. Occasionally, one person thinks they may gain a tactical advantage by untruthfully alleging violence by the other person.
The Family Court takes family violence extremely seriously. It is defined broadly to include actual or threatened violence, stalking, derogatory taunts, damage to property, harming of pets, exerting financial control, preventing the other person from maintaining relationships with family and friends, and exposing children to such behaviour.
When the Court is satisfied that there has been actual or threatened violence, the Court can restrain one of the parties from engaging in certain conduct in order to protect the other party and the children.
The restrained conduct could include:
- contacting or approaching the other partner, the children or other members of that person’s family or household
- approaching those people’s homes or workplaces or the children’s schools
- assaulting, harassing, intimidating or stalking those people
- denigrating or taunting those people.
A restraining order of that sort could be made at an early stage of Court proceedings or as a final order or both.
If someone fears violence from their former partner, they could seek an Apprehended Violence Order (AVO) with the assistance of the police. An AVO can provide the same sort of protection as a Family Court personal protection order. However, AVOs are usually quicker, easier and cheaper to obtain. The consequences of breaching an AVO can be more serious.
What about parenting orders?
Even though there is an AVO or personal protection order, the person against whom that order was made can still spend time with the children. In making parenting orders, the most important consideration is always the children’s best interests. The Court will try to weigh up the benefit to the children of spending time with both parents with the risks of family violence which gave rise to the restraining order or AVO.
Sole occupation of the former home
When a couple separates, one of them usually moves out. However, that doesn’t always happen – sometimes for financial reasons, for the children, or for tactical or intimidatory reasons.
When an AVO or personal protection restraining order has been made, the protected person often asks the Court to order that their former partner be restrained from living in the former home. That person (and usually the children) would then have the right to sole occupation of the former home.
Unfortunately, some people going through a relationship breakdown occasionally make up or exaggerate allegations of violence to try to obtain an AVO and then an order for sole occupancy of the parties’ former home.
Protection of property
As well as protecting personal safety, the Court can restrain someone from dealing with property, if there is a risk that one party may dispose of an asset, so that there would not be enough assets left for an appropriate property settlement between the parties.
Relevant situations include:
- where real estate is owned by only one party who has put the property up for sale. The Court might restrain that person from selling the property or dealing with the proceeds of sale
- where one party has liquid assets, such as cash or shares, few ties to Australia and has threatened to transfer the assets overseas. The Court could restrain that person from dealing with some or all of the assets.
Restraining orders of this sort would ordinarily be made at an early stage in Court proceedings, in order to maintain the assets pending a final property settlement.
What happens if the restraining order is breached?
If someone breaches a personal protection restraining order, he or she could be arrested and held in custody pending trial, with a prison sentence a possible penalty.
If a party breaches any other sort of Family Court restraining order, including one to preserve property, the Court has a range of sanctions available to it, including fines, good behaviour bonds or imprisonment.
In a family law matter, the Court can make orders restraining one or both parties from engaging in certain conduct. A restraining order is usually intended to protect people or property, or it might be to force one person to vacate the parties’ former home.
The Court takes the issue of family violence very seriously and that is often a factor in making a restraining order. The Court also takes the breach of restraining orders seriously, and it has the power to impose a range of significant penalties.
If you or someone you know wants more information or needs help or advice, please contact us on 02 6201 7243 or email [email protected].