restraining orders
📖 O que é restraining orders? Significado e conceito
In Australia, a restraining order is a legal tool used by courts, particularly in the context of criminal assets and proceeds of crime. These orders are designed to freeze or restrict access to property that is suspected to be linked to criminal activity. The purpose is to prevent individuals from selling, transferring, or otherwise dealing with these assets before a final decision is made about their legal status.
Courts can issue ancillary orders alongside restraining orders, such as examination orders. An examination order allows for the questioning of various individuals, including those whose property is subject to the restraining order, suspects, or their spouses/de facto partners, about the 'affairs' of a person involved. This process helps gather information related to the property and the suspected criminal activity.
It's important to note that these orders can be sought without prior notice to all parties, which is not uncommon in such applications. While a restraining order is in effect, any related examination orders also remain in force. If the restraining order ceases to have effect, the examination order linked to it also stops.
Even when a restraining order is in place, certain dealings with the property might still be permitted under specific conditions. For example, a registered mortgagee (like a bank) might be allowed to continue levying interest and adjusting loan balances according to a registered mortgage, as long as it aligns with the terms of the order.
📋 Requisitos
- A restraining order must be in force for an examination order to be made.
- There must be a reasonable suspicion that the property is linked to criminal assets.
- The application for the order is typically made by authorities like the New South Wales Crime Commission or the Australian Federal Police.
📝 Procedimento
- An application for a restraining order is filed, often by a crime commission or federal police.
- The court considers the application, which may be made without prior notice to all affected parties.
- If granted, the court issues the restraining order, specifying the property and any conditions on how it can be dealt with.
- An examination order may also be made, allowing for the questioning of relevant persons about their affairs.
💡 Exemplos
- A court might issue a restraining order over a house and bank accounts belonging to an individual suspected of drug trafficking, preventing them from selling the house or withdrawing funds.
- The New South Wales Crime Commission could apply for a restraining order against a person's assets after they are suspected of involvement in a major fraud scheme.
- Even with a restraining order on a property, a bank holding a mortgage on that property might still be allowed to collect interest payments as per the loan agreement.
- An examination order could be made to question a suspect's de facto partner about the financial dealings related to the restrained property.
📚 Base legal
- Proceeds of Crime Act 2002 (Cth)
- Criminal Assets Recovery Act 1990 (NSW)
- Crimes Act 1900 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)
❓ Perguntas frequentes
What kind of property can a restraining order apply to?
A restraining order can apply to various types of property, including real estate and other assets, as specified in the court order. The goal is to prevent the disposal or dealing of property suspected to be linked to criminal activity.
Can I be examined if a restraining order is made against someone I know?
Yes, if a restraining order is in force, the court can make an examination order for various people, including a person whose property is subject to the order, a suspect, or their spouse or de facto partner, to be questioned about their 'affairs'.
Do I always get notice before a restraining order is sought against my property?
Not always. It is noted in some cases that parties may not be given notice that such orders would be sought, especially in applications of this kind.
What happens to an examination order if the related restraining order ends?
An examination order ceases to have effect if the restraining order to which it relates also ceases to have effect.
Can I still deal with my property if a restraining order is in place?
Generally, no, the property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order. However, specific exceptions may be granted, such as a mortgagee continuing to levy interest on a loan.
Who typically applies for a restraining order?
Applications for restraining orders are typically made by authorities such as the New South Wales Crime Commission or the Commissioner of the Australian Federal Police.
What does 'affairs' mean in the context of an examination order?
The term 'affairs of a person' is broadly defined and includes, but is not limited to, matters relevant to the property and suspected criminal activity under investigation.