This article discusses the unfortunately common situation where an accused’s ex-partner (or other associated person) keeps contacting them, despite there being protective bail conditions or a restraining order in place preventing the accused from having any contact with that person.

At first blush it might seem bizarre that a ‘protected person’ might keep contacting the person that a restraining order, or protective bail condition, is supposed to protect them from. You would think that the protected person wouldn’t want any contact with the person they need protecting from. But unfortunately, in our experience it is increasingly common that protected persons will obtain either a restraining order, or protective bail conditions, and then repeatedly contact the accused or restrained person. This can occur for a variety of reasons:

• The protected person might want to resume a relationship with the restrained person but be ambivalent about doing so without the protection of the restraining order or bail conditions to fall back on;
• The protected person might be attempting to induce the restrained person to breach the restraining order or bail conditions; &
• The protected person may have never requested the restraining order or bail conditions be imposed, but they were imposed anyway.

This article outlines a few basic tips which can help accused and restrained persons from breaching their  bail or their restraining order and ending up in custody.

 

In what situations will I be prohibited from contacting someone?

Generally, there are only a handful of situations in which you will be ordered by the court (or police) to not contact another person. The ability to contact another person is basic, essential human behaviour and restricting this involves a gross restriction on a person’s basic daily functioning, particularly where that person is closely related to the person they aren’t allowed to contact.

You can usually be restricted by a court from contact another person in two situations:

• If you are bound by an interim or final restraining order; &
• If there are ‘protective bail conditions’ in place.

If you are bound by a restraining order and breach the order by contacting the protected person, this is an offence of breaching a restraining order. You can be imprisoned for this offence and there is mandatory sentencing for multiple breaches.

If you breach a protective bail condition, this is a ‘serious offence’ for the purposes of the Bail Act and you risk ending up a Schedule II offender.

You can also be restricted by the police from contacting another person if they issue you with a police order. A breach of a police order is the same offence as breaching a restraining order.

So it is fairly plain that if you breach court or other orders not to contact a person, you risk facing serious consequences. You can end up in custody and it might be a long wait in custody.

 

What do I do if the protected person keeps contacting me?

Unfortunately, it is not an offence if a protected person keeps contacting you. Indeed, it is expressly set out in the restraining orders legislation that it’s not an offence if the protected person aids the breach of the order, for example by initiating contact with you.

The only account taken of a breach by a protected person is if they ‘aid a breach of a restraining order’ (Eg by contacting you, causing you to contact them) and you had no influence on the protected person aiding you to breach the order by contacting them. It is difficult to establish this. Further, a protected person aiding you to breach the order is no defence to a charge of breaching a restraining order: it is merely something the court can take into account in sentencing you.

So you need to be very careful when a person keeps contacting you when you are prohibited by court order or police order from contacting them.

You really have three main options in this situation:

• Apply to the court to cancel the restraining order or bail condition;
• Take out a restraining order yourself against the protected person; or
• Change your phone number and don’t give it out to anyone who knows the protected person.

Each of the first two options are complex and have potential downsides. We recommend you contact us for expert advice if you are considering the first two options.

In relation to the third option, this is the most practical and potentially effective option. However, there is always the risk the protected person can contact you in other ways.

 

Conclusion

If a protected person keeps contacting you, you are in a precarious situation. If you respond to the contact in any way, you risk being charged with breaching a restraining order, or breaching your bail conditions. Both outcomes end up with you sitting in custody. This can be so even if you are eventually acquitted of the charges. If you are in a situation where the protected person keeps contacting you, you need immediate help from a skilled lawyer. Please do not hesitate to contact us today if you are in this unfortunate situation.