What are Restraining Orders?
Restraining Orders are orders made by the Court that stop you from being able to deal with your property (including land, cash or other assets). Restraining Orders can stop you from accessing, selling or using your property. This could be in case the prosecution wants to apply to confiscate/forfeit it, or wants to preserve it for use to compensate alleged victims of crime.
Will I be told if a Restraining Order is going to be made?
Not necessarily. The Director of Public Prosecution can apply to a court for a Restraining Order if you have been, or are going to be, charged with particular serious offences, without you being informed about it prior to the Application being made. There are circumstances where the court will tell the prosecution that they have to give you prior notice, but that does not happen in each case.
Can I stop a Restraining Order from being made?
If you are told that the prosecution are going to apply for a Restraining Order, inform your lawyer immediately. If a Restraining Order is being applied for, your lawyer can try and explain to the Court why it should be limited or not made at all.
What do I do if I am served with a Restraining Order?
If you are served with a Restraining Order, inform your lawyer immediately. You should read the document carefully because it will tell you the property the order relates to and in what way your use of it is restricted.
What happens if someone else also has an interest in the property?
A Restraining Order can be made in relation to property which has more than one owner, or where more than one person has an interest in the property.
Do I need to tell the police what my property interests are?
Once a Restraining Order is made, the police must give notice to you if they believe you have an interest in the property. You will then need to give the Court a written declaration of your property interests, and who else has an interest, within 14 days. The declaration must not include false or misleading information. If you give false or misleading information, or fail to provide a written declaration, you may be charged with a criminal offence. Each person who has an interest in the property must be notified that the order is in place, so it is important that this form is filled in correctly.
Can I use my property when it is restrained?
A Restraining Order can make provision for reasonable living expenses and business expenses, but only if the court believes those needs cannot be met with your other income or property that is unrestrained. It is important to have a lawyer who can let the court know about what your needs are, with respect to that property. Legal fees are not allowed to be paid from restrained funds.
What happens if I breach a Restraining Order?
It is an offence to knowingly Contravene a Restraining Order. The penalty could be imprisonment of up to 10 years, or a fine not exceeding 1200 penalty units, or a fine not exceeding the value of the interest (whichever is greater).
