RESTRAINING ORDERS AND PROTECTION ORDERS IN NEW ZEALAND: THE DIFFERENCE
When people are dealing with situations involving family violence, harassment, or threatening behaviour, two legal terms tend to come up: protection orders and restraining orders. In New Zealand, these are distinct legal instruments governed by different legislation, carrying different eligibility requirements, and operating in different legal contexts. Confusing the two can result in delays, wrong applications, or a failure to access the right type of protection. If you are trying to work out which applies to your situation, a family lawyer Auckland residents trust can help clarify your options and guide you in taking the right steps.
Contents
This article explains what each type of order is, how they differ, who can apply, and what to expect from the process in New Zealand courts.
WHAT IS A PROTECTION ORDER?
A protection order is a civil order issued by the Family Court under the Family Violence Act 2018. It is designed to protect people in a close personal relationship such as but not limited to family members.
WHAT IS A RESTRAINING ORDER?
The term “restraining order” is used somewhat loosely in New Zealand and can refer to different types of orders depending on the legal context. In the most common usage, when people refer to a restraining order in a personal safety context, they are referring to an order made under the Harassment Act 1997.
Under the Harassment Act 1997, a person who has been subjected to a pattern of harassing behaviour can apply to the District Court for a restraining order. The Act defines harassment as a pattern of behaviour directed at a specific individual that causes that person distress. Conduct that can constitute harassment includes following, watching, or approaching the person, making repeated contact, interfering with their property, and delivering or sending offensive material. The emphasis is on repetition: a single incident will generally not be sufficient.
A particularly important feature of the Harassment Act is that it places no restriction on the relationship between the parties. A restraining order can be sought against a neighbour, a work colleague, an acquaintance, or a stranger, provided the pattern of harassing behaviour can be established. This makes it a broader remedy in terms of the range of people it can be used against, even if the conduct it addresses is more narrowly framed than the family violence covered by the Family Violence Act 2018.
Restraining orders under the Harassment Act can be made on a without notice basis where urgency is demonstrated. Breaching a restraining order is a criminal offence, and in more serious cases the harassing conduct itself can also give rise to a separate criminal charge of harassment under the same Act.
THE KEY DIFFERENCES
Although both types of order are designed to protect people from harmful behaviour, there are fundamental differences between them that determine which applies in any given set of circumstances.
The most significant difference is the relationship between the parties. A protection order under the Family Violence Act 2018 can only be sought where the applicant and respondent are family members as defined by the Act. The definition is wider than many people assume — it covers current and former spouses and de facto partners, people in a close personal relationship, parents and children, siblings, and people who ordinarily share or have shared a household. Where the parties do not fall within that definition, a protection order is not available regardless of how serious the conduct has been.
Restraining orders under the Harassment Act 1997 carry no such relationship requirement. They are available to anyone who has experienced a pattern of harassing behaviour, making them accessible where the parties are strangers or have a professional or social connection that does not amount to a family relationship.
A second key distinction is the type of conduct addressed. Protection orders cover a wide range of family violence, including controlling and coercive behaviour, psychological abuse, and financial abuse — forms of harm that extend well beyond physical acts. Restraining orders under the Harassment Act are targeted at repetitive harassing conduct that causes distress to a specific individual. The definition, while still broad, is more focused on a particular pattern of behaviour.
Both types of proceedings are civil in nature, meaning the standard of proof is the balance of probabilities rather than beyond reasonable doubt. The consequences of breach differ in their detail. Breaching a final protection order under the Family Violence Act 2018 is a criminal offence carrying a maximum penalty of three years’ imprisonment or a fine. Breaching a restraining order under the Harassment Act is also a criminal offence, with penalties set out in that Act.
WHO CAN APPLY
For a protection order under the Family Violence Act 2018, the applicant must be a family member of the respondent as defined by the Act, or be or have been in a close personal relationship such as a girl friend or ex boy friend . Applications can be made by the person at risk, by a person on behalf of a child at risk, or by the Police. The Police have statutory power to apply for a protection order on behalf of a victim who is unwilling or unable to apply themselves — a significant safeguard where fear or coercion prevents independent action.
For a restraining order under the Harassment Act 1997, any person who has experienced harassment as defined by that Act can apply, regardless of their relationship with the respondent. An Auckland family lawyer can help you assess which type of application is right for your circumstances, prepare the supporting documentation, and guide you through the court process.
THE APPLICATION PROCESS AND THE ROLE OF EVIDENCE
Protection orders are applied for in the Family Court. Where immediate protection is needed, a without notice application can be filed and, if the threshold is met, a temporary protection order takes effect at once. The respondent is then served, and a hearing is set at which both parties can address the court and the temporary order may be confirmed or discharged.
Restraining orders under the Harassment Act 1997 are applied for in the District Court. Without notice applications are available where urgency is established. Once made, the respondent is served and a hearing follows.
In both types of proceedings, the quality of evidence you bring matters considerably. Courts expect documentation demonstrating the nature, frequency, and impact of the behaviour in question. Useful evidence includes text messages, emails, diary records of incidents with dates and details, photographs of property damage, medical records, police reports, and statements from people who witnessed the conduct or observed its effects. Presenting this material in a coherent and organised way strengthens the foundation of your case.
DURATION, VARIATION, AND DISCHARGE
A final protection order made under the Family Violence Act 2018 remains in force indefinitely. It does not expire after a set period.
Restraining orders made under the Harassment Act 1997 are made for a specified period of up to two years. They can be renewed on application before they expire, and varied or discharged where circumstances have changed and the court considers it appropriate.
Understanding how long an order lasts, under what circumstances it can be changed, and what the obligations are while it is in force is an important part of navigating these proceedings. Accessing family law services in Auckland from a practitioner experienced in this area will help ensure you understand your rights and obligations and can respond appropriately if your circumstances change.
WHICH ORDER IS RIGHT FOR YOUR SITUATION
Choosing between a protection order and a restraining order is not always straightforward. Where the parties are family members and the conduct amounts to family violence, the Family Violence Act 2018 and a protection order will generally be the appropriate route. Where the parties are not in a family relationship and the conduct involves a pattern of harassing behaviour, a restraining order under the Harassment Act 1997 is likely the more appropriate remedy. In some circumstances, the facts could support either type of application, and legal advice is needed to identify the stronger path forward.
New Zealand law takes both family violence and harassment seriously. Both the Family Court and the District Court have effective tools to intervene quickly where people are at risk, and without notice mechanisms are available in both regimes where waiting would expose someone to further danger.
If you are in immediate danger, contact the Police. If you need to understand your legal options and take steps to protect yourself or someone you care for, seek advice from an experienced New Zealand family lawyer as early as possible. Both protection orders and restraining orders are powerful legal instruments when applied in the right circumstances, and sound legal guidance makes a real difference to how effectively they protect you.
Restraining Orders v Protection Orders FAQs
Because your neighbour is not a family member as defined by the Family Violence Act 2018, a protection order would not be available in your circumstances. The appropriate remedy is a restraining order under the Harassment Act 1997. To obtain one, you would need to demonstrate a pattern of harassing behaviour directed at you that has caused distress — repeated unwanted contact and following behaviour is precisely the kind of conduct the Harassment Act is designed to address. The application would be made to the District Court, not the Family Court, and without notice orders are available where urgency can be shown.
Yes. The Family Violence Act 2018 gives the Police the power to apply for a protection order on behalf of a victim who is unwilling or unable to apply themselves. This power exists precisely because fear, coercion, and the dynamics of abusive relationships can make it extremely difficult for victims to take independent legal action. The Police can exercise this power without the victim’s consent, though in practice they will usually discuss the decision with the person at risk. This is one of the important structural differences between the protection order regime and restraining orders under the Harassment Act, where there is no equivalent Police power to apply on a victim’s behalf.
Restraining orders made under the Harassment Act 1997 are granted for a specified period of up to two years and do not renew automatically when they expire. If you remain at risk as the expiry date approaches, you can apply to the District Court to have the order renewed before it lapses. You would need to demonstrate that the need for protection continues. This is one of the most significant practical differences between a restraining order and a protection order: a final protection order made under the Family Violence Act 2018 has no expiry date and remains in force indefinitely until a court is satisfied it is no longer necessary and formally discharges it.
No. A restraining order under the Harassment Act 1997 and a protection order under the Family Violence Act 2018 are entirely separate legal instruments with different scope, different conditions, and different enforcement mechanisms. A restraining order addresses the specific harassing conduct that gave rise to the application under the Harassment Act. It does not carry the broader protections available under the family violence regime, and it does not attract the same criminal consequences on breach. If family violence is occurring and you qualify as a family member of the respondent, you would need a separate protection order application under the Family Violence Act 2018 to access those protections.
It depends on whether your relationship falls within the definition of family member under the Family Violence Act 2018. The Act goes beyond spouses and de facto partners to include people who are or have been in a close personal relationship. Whether a short dating relationship meets that threshold is something the court would assess on the specific facts — the nature of the relationship, how long it lasted, and the degree of intimacy involved are all relevant. If there is uncertainty about whether you qualify, legal advice before deciding which type of application to file will save time and avoid the risk of applying to the wrong court.
Author Credentials: Naomi Samantha Cramer is a Barrister & Solicitor with over 27 years experience . She is an expert in Family Law and author of several publications including Protection Orders Under the New Zealand Family Violence Act 2018 . Her research and legal insights are documented and available on Google Scholar and ORCID. Professional registration confirmed via the NZ Law Society . You can also find her professional profile on LinkedIn . Click here to view her comprehensive profile and publications at the Author Credentials Hub.