If you want to know how to get a restraining order in New South Wales, Australia, it’s best to communicate with a family lawyer. A family lawyer can give you personalised advice regarding domestic violence laws and restraining order requirements under Australian law.
Domestic or family violence is a pervasive issue that affects individuals and families across Australia. The tragic cases of harm, control, and violence have shed light on the urgent need for protective measures. One powerful tool available to victims of family violence is the restraining order. Additionally, we can also call this a protective order or family violence order, depending on the state or territory in Australia.
In this article, we will explore the concept of restraining orders in family law in Australia and their significance in providing personal protection. Furthermore, we will delve into the process of obtaining a restraining order and the legal implications of breaching its conditions.
We will also explain some recent changes on laws that enhance protection for domestic and family violence survivors.
What Is a Restraining Order?
A restraining order is an Apprehended Violence Order (AVO) in New South Wales, Australia. It is a court order that protects individuals from violence, harassment, intimidation, or stalking. Moreover, it sets out specific conditions that the person against whom the order (the defendant) is made must follow.
Anyone seeking protection from physical assault, threats of physical harm, stalking, intimidation or or harassment, and who has a reasonable fear that this behaviour will continue can apply for a restraining order. You can apply for an AVO against a person who commits family violence. This can include a family member, guardian, carer or other person in a domestic relationship with you.
Here are some key points about restraining orders or AVOs in New South Wales, Australia:
- Types. There are two types of AVOs in New South Wales: Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs).
- Purpose. The purpose of an AVO is to protect a person against further violence or harassment. Furthermore, it can also provide protection for any children and can prohibit the defendant from contacting or approaching the protected person.
- Legal implications. Moreover, breaching the conditions of an AVO is a criminal offence and can result in penalties, including imprisonment.
- Enforceability. An AVO becomes enforceable once it is served on the defendant. If the defendant breaches the conditions of the AVO, the protected person can report the breach to the police for investigation and possible charges.
How to Get a Restraining Order?
Here is a step-by-step process on how to get a restraining order in NSW:
- Contact the police: If you are in immediate danger, call the police on 000. If you are not in immediate danger, you can contact the non-emergencies hotline at 131 444.
- Make an application: To apply for an ADVO, you can fill out an application form at your local court. Here’s a sample of the form. You will need to provide details of the violence or harassment you have experienced and the reasons why you need an ADVO. One must lodge the application and all attachments at a magistrates court.
- Attend a court hearing: Once you submit your application, you will get a court date for a hearing. You will need to attend the hearing and provide evidence to support your application.
- Obtain an interim order: If the court believes that you are at risk of harm, it may issue an interim order that provides immediate protection until the final hearing.
- Attend a final hearing: At the final hearing, the court will consider all the evidence and decide whether to make a final ADVO. If the court makes a final ADVO, it will set out specific conditions that the person against whom the order is made must follow.
- Enforce the order: Once the ADVO is made, it becomes enforceable by law. Moreover, if the person against whom the order is made breaches the conditions of the ADVO, you can report the breach to the police for investigation and possible charges.
There are two different avenues for pursuing a restraining order:
- A Family Violence Intervention Order: This is usually suitable if you want to apply for an order against a family member, partner, or ex-partner.
- A Personal Safety Intervention Order: This is the option to provide protection against someone who is not a family member.
For information about how to file a restraining order in the different states of Australia, read this article.
Related Legislation: Crimes (Domestic and Personal Violence) Act 2007
Section 36 of the Crimes (Domestic and Personal Violence) Act 2007 NSW provides for the conditions contained in a restraining order. A restraining order must specify that it prohibits from doing any of the following:
- Assaulting or threatening the protected person or a person with whom the protected person has a domestic relationship,
- Stalking, harassing or intimidating the protected person or a person with whom the protected person has a domestic relationship,
- Intentionally or recklessly destroying or damaging any property, or harming an animal, that belongs to, or is in the possession of, the protected person or a person with whom the protected person has a domestic relationship.
New Protections For Domestic and Family Violence Survivors 2025
In September 2024, the NSW government has finally added new laws that will protect survivors of domestic and family violence. There are new offences that are punishable by tougher penalties. Breach of a restraining order or ADVOs also carry with it stricter penalties.
The new changes target conduct that can be considered as a high risk of harm to the victim-survivor. The following are the changes:
- Intentional breach offence: This is directed at serious or harmful breaches of restraining orders. The cause for such breach is due to the offender’s intention to cause harm or fear to the protected person. (Maximum penalty: 3 years imprisonment)
- Persistent breach offence: This is for repeated breaches of ADVOs over a short period of time. Such repetitive conduct reflects a clear disregard for the conditions of the ADVO. (Maximum penalty: 5 years imprisonment)
- Serious Domestic Abuse Prevention Order (SDAPO): This is a civil protection scheme that targets serious domestic and family violence offenders. It is a tool that allows law enforcement to monitor and supervise very high-risk offenders. This aims to keep the relatives, and former, current or potential future intimate partners safe from violence. The breach of this order has a maximum penalty of 5 years imprisonment.
APVO vs. ADVO
In NSW, there are two types of Apprehended Violence Orders (AVOs): Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). Here are the differences between the two:
Apprehended Personal Violence Order (APVO)
- Applies to people who are not related and do not have a domestic relationship, such as neighbours or work colleagues.
- Designed to protect individuals from violence, harassment, intimidation, or stalking by someone with whom they do not have a domestic relationship.
- Can prevent the defendant from contacting or approaching the protected person
Apprehended Domestic Violence Order (ADVO)
- Applies to people who are in a domestic relationship, including family members, spouses, de facto partners, and children.
- Designed to protect individuals from violence, harassment, intimidation, or stalking by someone with whom they have a domestic relationship.
- Can prevent the defendant from contacting or approaching the protected person.
This section will focus on the second type of restraining order: the Apprehended Domestic Violence Order (ADVO). An Apprehended Domestic Violence Order (ADVO) is a type of Apprehended Violence Order (AVO) that is made when the protected person and the defendant have been or are in a domestic relationship.
The term “domestic relationship” has a broad definition and includes:
- marriage,
- de facto partnerships,
- intimate personal relationships,
- people living in the same household,
- long-term residents in the same residential facility,
- carers, and
- relatives.
AVO Breach Implications
Now that have understood how to get a restraining order in NSW, it is essential that you also know about the effects of breaching an ADVO. Here are some consequences of breaching an ADVO:
- Criminal charges. If the defendant breaches the conditions of the order, the police can charge them with a criminal offence.
- Arrest. The police have the power to arrest the person who breaches the ADVO.
- Penalties. If the Court finds you guilty of breaching the ADVO, you might face a $5,500 fine and/or up to two years in jail.
- Enforceability. Once the court makes an ADVO, it becomes enforceable by law.
Seek Expert Advice on How to Get a Restraining Order or Family Violence Restraining Orders
If the person against whom the order is made breaches the conditions of the ADVO, the protected person can report the breach to the police for investigation and possible charges. However, it important to seek legal advice and support from a family lawyer when dealing with ADVO matters, including breaches.
JB Solicitors has a team of lawyers who specialise in domestic violence matters. If you want to know more about the process of how to get a restraining order in NSW, Western Australia, Victoria or in any other state our lawyers will walk you through it. Lastly, we can also provide family violence service advice and legal representation.
Contact us today if you need help with a family violence restraining order.
Last updated: 13 February 2025
