Consequences of breaching restraining orders
Restraining orders, including Police Orders, put restrictions on what the person bound by the order can lawfully do. If they do something that is not allowed by one of the restraints, they are ‘breaching’ the restraining order.
It is a criminal offence to breach the conditions of a restraining order. The penalty for breaching restraining orders can include a sentence of imprisonment, especially if the person has breached restraining orders before.
This information will help you understand what can happen if a person breaches a restraining order. Find out:
- what the police and courts can do if someone breaches a restraining order
- what can happen if you allowed or encouraged the person to breach the order, and
- what exceptions or defences might apply to the person bound by the order.
What can the police do if someone breaches a restraining order?
You should report any breaches (or suspected breaches) of restraining orders to the police. If you need emergency help, call 000.
If there is enough evidence, the police can arrest the person bound by the order and can charge them for breaching the restraining order as part of investigating the complaint. The police can then prosecute that person in court.
If the person is charged with breaching an FVRO, a VRO or a Police Order, they will usually be kept in custody by police until they appear in court. The offender might be able to apply for bail in court.
Before they can be released on bail, the court has to think about whether the person might breach the order again, or put your safety or welfare at risk if they are released. You may be able to let the court know how you feel about having the person being released on bail and what you want to happen.
What can the court do when sentencing someone for breaching a restraining order?
The maximum penalty for an offence of breaching a Family Violence Restraining Order (FVRO), Violence Restraining Order (VRO) or Police Order is 2 years’ imprisonment and a $10,000 fine. The actual penalty that will be imposed will depend on all the circumstances of the case. An offence is made more serious if the offender exposed a child family member to family violence when they breached the restraining order.
If the person has previously breached an FVRO, VRO or Police Order more than once in the last 2 years, they might be treated as a repeat offender. In that case, the court must impose a sentence that includes a term of suspended or immediate imprisonment, unless it would be clearly unjust to do so.
In situations involving family violence, the offender might ask to participate in counselling through a family violence program before they are sentenced by the court.
The maximum penalty for breaching an MRO is a $1,000 fine.
What if I allow or encourage the other person to breach the restraining order?
If you are the person protected by a restraining order, you can ask the police for help or report that the person bound by the order has breached it, even if you were agreeing with, helping or encouraging the other person to breach the order.
You cannot be charged with an offence for helping or allowing the person bound to breach the restraining order, or for trying to get them to breach it.
However, the court can vary or even cancel your restraining order if it is satisfied that you helped or encouraged the person to breach it, or tried to get them to breach it. This can be done when the court is sentencing the person for breaching the restraining order, or if they make an application to have the order varied or cancelled.
What exceptions or defences are there to breaching a restraining order?
The restraining order might have exceptions to say that the order is not breached if the person bound by the order does certain things. For example, the restraining order might stop them from contacting you, but make an exemption to allow them to send you text messages about your children.
It is important that you read the order carefully and get legal advice if you are unsure about what behaviour it covers.
There are also defences if the person bound by the order can show that the breach involved them:
- using a family dispute resolution or mediation service
- acting through a lawyer or ALSWA court officer
- following instructions given by a child welfare officer from the Department of Communities
- attending a court hearing as a party or witness, or
- doing what an ordinary person would do in responding to an emergency situation.
It is not a defence to say that you asked or agreed to them breaching the restraining order, or that you encouraged, helped or made them breach the order. However, that might be a reason for the order to be varied or cancelled by the court.
Reviewed: 6 April 2018