Legal Test for Restraining OrdersThe Family Law Act states that a restraining order may be granted where the applicant has reasonable grounds to fear for his or her own safety, or for the safety of any child in her lawful custody (section 46). When this provision is broken down in case law, the following principles consistently arise:
- The purpose of a restraining order is to provide the applicant some degree of order and calm after suffering from abuse and/or harassment;
- The applicant must legitimately fear for his or her safety;
- The fear can be entirely subjective, so long as it is reasonable;
- There must be some persistence to the harmful conduct. One-time incidents generally do not warrant the imposition of restraining orders; and
- The fear of emotional and/or psychological harm is as serious as the fear of physical harm.