A litigant at family court can apply for a restraining order against any person if they have reasonable grounds:
to fear for their own safety; or
for the safety of any child in their lawful custody.
If you are looking to get a restraining order, here are some things you should consider:
The subject of your restraining order can be different depending on the legislation under which you seek the remedy. Under section 35 of the Children’s Law Reform Act a restraining order can be sought against any person. However, under section 46 of the Family Law Act, a restraining order can only be sought against a restricted group of people: spouses, former spouses, or people that one cohabited with at some point.
With a restraining order you can prevent someone from directly or indirectly contacting you and/or your children. You can also prevent a person from coming within a specified distance of one or more locations (your home, your workplace, the child’s school, the child’s day care etc.).
A restraining order is a discretionary remedy. This means that the court may choose if and when to issue a restraining order. Courts have concluded that restraining orders are appropriate when another person molests, annoys, or harasses you and/or the children. The types of conduct that courts will restrain involves behaviour that a reasonable person would see as disturbing or as a substantial source of anxiety or irritation. It is behaviour that bothers and vexes you, and it can involve repeated acts that harm, injure, molest or make you angry.
If you think someone’s conduct amounts to molesting, annoying, or harassing behaviour, there must be an objective factual basis for such a conclusion. Restraining orders are not remedies for bad manners, poor communication or suspicion. It is remedy to control another person when he or she is unable to restrain themselves and a court is required to tell them how to behave.
Typically, if a court concludes that the family litigation cannot be conducted in a reasonable atmosphere, a restraining order may be necessary.
It helps to know that restraining orders have been granted in cases where a spouse had emotional outbursts and made repeated threats to the applicant. It has also been granted where a spouse physically and emotionally abused the applicant throughout the marriage, had alcohol problems and threatened to kill the applicant if she ever left. It has also been granted in a case where the spouse wrote letters, followed the applicant, and repeatedly telephoned her at work.
Restraining orders have not been granted where a spouse assaulted the applicant prior to separation, but since then there was no contact. It has also not been granted where parties continued to reside in the same house, and yet the spouse started dating a new person.
To reiterate the remedy is not to curb bad manners, and will likely not be granted if there appears no need for the remedy in the circumstances since there is no objective threat to the applicant or the children’s safety.
The information contained herein is not intended to be legal advice.