In urgent cases an interim order may be made by the magistrate even before the respondent is notified of the application. An interim order is a temporary order and it usually remains in force until the next stage of the hearing or for such period of time as the magistrate considers appropriate.
These orders may be made after the application has been heard by the magistrate and both parties have either consented to the orders or the magistrate has decided that orders should be made.
If the Police have been called to a domestic violence incident they may, with your consent, apply for a restraint order on your behalf. Police also have the power to bail persons arrested at a domestic violence incident with bail conditions which are usually identical to those granted by a court on a successful application for an order.
Alternatively, you can apply for a restraint order yourself, by filling in an application form and filing it with the Magistrates' Courts.
You can seek assistance and representation from a lawyer if you wish. Assistance may also be obtained from the Legal Aid Commission of Tasmania and the Domestic Violence Crisis Service.
There are several processes that a Restraint Order Application may need to pass through at the courts:
When an application is urgent a hearing usually occurs on the same day the application is lodged with the court. The Magistrate may want to ask you questions so you should attend court even though the respondent may not be there. The purpose of the urgent hearing is to consider making interim orders and set a time for a formal hearing.
The purpose of a formal hearing is give the respondent the opportunity to say whether they consent to the orders or not. The hearing is normally in an open court, but restraint order matters are usually left to the end of the day for confidentiality reasons. Your application will not be read out in court, but the magistrate may ask you questions to clarify what you have said in your application. If the magistrate asks you questions you should stand up to answer, and you may answer from where you were sitting in the court unless the magistrate asks you to stand at the end of the table. The magistrate will not expect you to behave as if you are a lawyer, just answer the questions in a straight-forward way.
The matter may have to go to a final hearing if the respondent contests the application. However, very few applications are contested. Before a final hearing the matter may be listed for a 'contest mention'. You may have a lawyer represent you at a contest mention if you wish. The purpose of a contest mention is to clarify the issues, determine the number of witnesses and the approximate length of a final hearing. If the respondent still contests the application after a contest mention, the matter will be listed for a final hearing. You may have a lawyer represent you at this hearing if you wish, and you can give evidence and call witnesses. The magistrate may uphold or dismiss your application. If your application is upheld, the magistrate may make final orders and you may wish to apply to the magistrate for the recovery of your costs. If your application is dismissed, no orders will be made and the respondent may apply to the magistrate for the recovery of costs.
The respondent to a Restraint Order Application will receive a copy of the application. The application is normally given to (served on) the respondent by a process server or police officer. Within the copy of the application the respondent will find a 'Notice of Hearing' giving the date and time of the formal hearing at which they should attend. If the magistrate has already made interim orders the respondent will also be served with a copy of the interim orders which take effect as soon as they are served. If the respondent is in court when orders are made, the orders take effect immediately.
A Restraint Order, whether interim or final, is a court order and it is a criminal offence for a person to breach any of the terms of the order. If the respondent breaches the order, you should call the Police immediately. The respondent can be arrested without a warrant or summoned to appear in court, and prosecuted. They may also face a maximum fine of $1000 or six months imprisonment.
It is important to remember that you have a legal obligation not to 'aid or abet' (encourage or assist) a person to breach a restraint order. For example you must not under any circumstances allow the restrained person to enter your home if there is an order in place which prohibits this. If you do, the police may charge you and the restrained person with breaching a restraint order.
If you have any questions or require assistance you can contact one of the following services: