How to Get a Restraining Order for Domestic Violence in Australia

A restraining order is a powerful tool which individuals who are subject to domestic violence in Australia. can employ in order to protect themselves from further abuse. There are two avenues of which someone can undertake if looking to obtain a restraining order. This is either through obtaining an Apprehended Domestic Violence Order (ADVO) or a Family Law Injunction Order.

Although both these types of orders are aimed at protecting victims from violence, they operate differently. 

What Is an ADVO (Apprehended Domestic Violence Order)?

An ADVO is a civil court order that protects a person from violence, intimidation, stalking or harassment by someone they are, or were in a domestic relationship with. It is an Order obtained through the Criminal Justice System.

What Is a Family Law Injunction Order?

A Family Law Injunction Order is a civil order which can be sought when parties to a violent relationship are already engaged in an ongoing parenting or property matter. An injunction is an order made by a court that requires a person to do, or refrain from doing something. These injunctions operate in a very similar fashion to an ADVO but are just attained differently. This type of order is awarded through the Federal Circuit and Family Law Court.

Who Is Eligible for a Restraining Order in Australia?

Eligibility Criteria for an ADVO

In order to be eligible to obtain an ADVO, you need to:

• Be in a domestic or intimate relationship with the person who you are seeking a restraining order against
• Be experiencing a form of domestic violence, intimidation or stalking
• Have a reasonable fear that this behaviour will continue

Eligibility Criteria Family Law Injunction Order

In order to be eligible to obtain a Family Law Injunction Order, you will need to:

• Be, or have been, married, in a de facto relationship or have children
• Already be engaged in family law proceedings
• Need protection from family violence, for the welfare of a child, or in relation to property or the matrimonial home.

How to Apply for a Restraining Order in Australia?

Application Process for an ADVO

There are two ways in which you can apply for an ADVO. This either through the Police, or through an application to the Court on your own behalf.

Typically, you will go through the police to apply for an ADVO. This is done by getting in contact with the police either through attending your local police station or calling them in response to a related incident. They will take your statement, which will include the details of the person who you are seeking protection from, your relationship to them, and any other relevant information. If the police believe that an ADVO is necessary to ensure your protection and safety after assessing the situation and the statement that you have given, they have an obligation to make an application to the court for an ADVO on your behalf.

If you are looking to apply on your own behalf, this involves either getting in touch with your local court or a solicitor to guide you. You must be aged 16 years or older to apply on your own behalf. Seeking out a solicitor for guidance through this process is a good idea, as if your application is managed incorrectly, this could result in it being dismissed.

The ADVO court process can go a few different ways:

1. If the defendant consents to the ADVO being made, it may be granted that day. 
2. However, if the defendant does not consent to the Order, both parties will then need to attend a hearing where the Court will consider all the evidence. If the Court is satisfied that there are fears for your safety and those fears are reasonable, an ADVO may be granted. 
3. If the defendant has been served but does not attend court, the ADVO may be granted.

Application Process for a Family Law Injunction Order

To apply for a Family Law Injunction Order, you must file an application with the Federal Circuit and Family Court of Australia (FCFCA), including relevant documents and evidence, and pay the filing fee for an Injunction Order application. This type of order is typically done through a solicitor, as they can guide you through court processes, required documentation and forms to give you the best chance at a successful application.

If both parties consent to an injunction order, or the matter can go to hearing where the Court will determine whether or not to grant the Order. In in relation to a parenting matter, the Court will consider whether or not the order is in the best interests of the children. In regard to a property matter, the Court must determine whether the injunction is necessary for the personal protection of a party.

What Evidence Do You Need for a Restraining Order?

In order to best persuade the court to grant an application for an ADVO or a Family Law Injunction Order, it is best to try and gather as much evidence as possible of any behaviours or incidents that will assist your claim. For example, this could include evidence like:

• Photographs
• Text Messages, Voicemails or Emails
• Witnesses Statements
• Diary Entries of incidents 
• Social Media posts or messages
• Police Reports,
• Medical Reports; or
• Any other documents to support your case.

Legal Protections Provided by Restraining Orders

Legal Protections under an ADVO

The purpose of an ADVO or a Family Law Injunction Order is to protect victims from further violence. The legal protections of which an ADVO affords can vary depending on the circumstances of why it is required. All ADVOs have the following legal protection for victims:

"The defendant must not do any of the following to the protected person, or anyone they have a domestic relationship with:

• assault or threaten them
• stalk, harass or intimate them, and
• deliberately or recklessly destroy anything that belongs to them."

Additional restrictions upon the defendant can be requested. These restrictions will be circumstance dependent, but examples could look like:

• Not allowed within a certain distance from the protected person/s residence, work or school.
• No longer allowed to reside at the family home
• Not allowed to contact the protected person except through the use of a lawyer,
• Not allowed to be in the company of a protected person for at least 12 hours after taking alcohol or drugs.

Legal Protections under a Family Law Injunction Order

For a Family Law Injunction Order, the legal protections afforded through an order can vary and are broad. In parenting matters, courts are allowed to grant injunctions:

• For the personal protection of the child, the child’s parent, a person with a parenting order in respect of the child, or a person who has parental responsibility for the child, or
• To restrain a person from entering or remaining in the place of residence, employment or education or other specified area of the child, the child’s parent, a person with a parenting order in respect of the child, or a person who has parental responsibility for the child

What happens after an ADVO or a Family Law Injunction Order is granted?

Enforcement of an ADVO

Once an ADVO is issued and served on the defendant, it becomes enforceable. From the point where the ADVO becomes enforceable, it is a criminal offence for the defendant to breach any of the conditions of which are specified in the order.

Any ADVOs made from the 25th of November 2017 operate nationally. This means that persons who are subject to the terms of an ADVO have to comply with the order across all Australian States & Territories.

Enforcement of a Family Law Injunction Order

Once a Family Law Injunction Order is granted by the court, the orders which are enclosed within them become enforceable. Those who are subject to the orders are bound by law to comply. Courts or the Police are the ones who have the power to enforce a Family Injunction Order. However, police do not have the power to arrest in relation to an injunction that was issued for a reason other than personal protection.

What are the Consequences for Breaching an ADVO or a Family Law Injunction Order?

If a breach of an ADVO was to occur, the protected person should contact the police immediately.

The consequences for the breach of an ADVO are severe. Under Section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) it is an offence to knowingly contravene a prohibition or restriction specified in an apprehended violence order of which you are subject to. This can mean imprisonment, with a maximum penalty of 2 years. It could also mean a fine, with the maximum penalty being $5,500.

If a Family Law Act injunction is breached, it is up to the person protected by the injunction to file an application to the court for it to be enforced. For the offender to be punished, the contravention must be proven. Courts have the ability to impose a bond, fine, or sentence of imprisonment for the contravention of an injunction. As previously mentioned, Police officers only have powers relating to personal protection injunctions. A Police officer has reasonable grounds to believe that a person has breached a Family Law Act personal protection injunction can arrest the person without a warrant.

Conclusion

Obtaining a restraining order in Australia is a crucial step toward protecting yourself and your loved ones from domestic violence. Whether through an ADVO or a Family Law Injunction Order, the legal system provides robust frameworks to help ensure your safety. As experienced Domestic Violence Lawyers, we specialise in guiding clients through every step of this process, offering clear legal advice, strong representation, and compassionate support. If you or someone you know is at risk, don’t hesitate to contact us for legal support and take the first step toward protection.