Restraining Order

What is a restraining order?

  • A restraining order or protective order is a legal order given by a court to protect a person in a situation often involving alleged domestic violence, child abuse, assault, harassment, stalking or sexual assault.
  • It typically prohibits the person named in the order (the respondent) from contacting, harassing, intimidating, or coming near the person who sought the order (the petitioner).

Who can apply for a restraining order?

  • All members of the public are eligible to apply for a restraining order.
  • Any aggrieved party who feels there is a justifiable reason to issue restrain or block another party from being permitted to come in contact with them or harass them may apply to the Magistrates Court for a restraining order.

How do I obtain a restraining order?

  • Applicants must file an application to the clerk of their local Magistrate’s Court.
  • After the application has been filed, it is allocated a case number. The matter is then assigned to a magistrate who will then allocate a date of hearing.
  • The Applicant then arranges service of the Application on the Respondent, and must then file an affidavit of service.
  • In cases of domestic violence, police officers may be asked to serve the restraining order to the other party.
  • The matter is then set for hearing. At the hearing, the magistrate listens to both sides of the story to make a ruling.

What supporting documents are required?

  • A written/typed affidavit (The Founding Affidavit) requesting a restraining order and a description of the circumstances and reasons for the order. This affidavit must be commissioned at the nearest police station.
  • A notice of motion completed, describing the specific reliefs sought in the restraining order.
  • A Certificate of Urgency can be attached if the matter is particularly time-sensitive (e.g. cases of domestic or spousal abuse) to be processed faster. (NOTE: A certificate of urgency is a written document outlining the reason for treating the matter as urgent). This ensures the case is heard almost immediately.

How long will this service take?

  • The processing of a restraining order application without a Certificate of Urgency typically takes about a week.
  • A restraining order application accompanied by a Certificate of Urgency typically takes one to two days.

Consequences of violating a restraining order

  • If your abuser breaches, or breaks the conditions of the restraining order, the complainant/victim is obliged to go to the police station and open a criminal case. The complainant must file an affidavit and in an explicit manner and include all forms and dates of abuse in the affidavit.

GLOSSARY

Adopted Child: means a child adopted under this Act;

Adoptive Parent: means a person who adopts or has adopted a child under this Act;

Child: means a person under the age of 18 years;

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