Restraining orders

A Restraining Order made by VCAT can prohibit or restrict the landlord or agent from entering the premises or contacting you and it can be enforced by the police. It is an offence for the landlord or agent to breach a Restraining Order and they can be prosecuted. See:

• privacy and entry – restraining orders

VCAT has broad powers to make an order to restrain a landlord from an action that is in breach of the Residential Tenancies Act 1997 (Vic) or the tenancy agreement.

VCAT can also order the landlord to take a positive action so that they comply with the law and the tenancy agreement.

In other words, VCAT can order that your landlord do something or not do something so that they follow the law and the tenancy agreement.

In particular, your landlord must follow the legal eviction process. Your landlord cannot force you to leave even if you stay beyond the termination date in a Termination Order. If you believe you are at risk of being illegally evicted, you should apply to VCAT for urgent intervention.

You can apply to VCAT for a restraining order if the landlord tries to enter your rented home unlawfully or in any other way is interfering with your quiet enjoyment of your rented home.

Previously you would apply for an urgent restraining order by going to VCAT in person to submit your application and a VCAT staff member would arrange a hearing, typically on the same day. You could do this without the other party there (on an ex parte basis) when urgent relief is required and VCAT could make temporary orders before a full hearing happens.

But due to the COVID-19 pandemic, all VCAT venues are closed to the public.

You can submit an application online or by email. However, you will first need to register with Consumer Affairs Victoria under the new Residential Tenancies Dispute Resolution Scheme. See applying to VCAT below.

If you require urgent relief and VCAT hears your application on an ex parte basis, then VCAT may order an interim restraining order. An interim order is only temporary before the full hearing of your application. At the full hearing where it is expected the landlord or their agent will attend and respond to your application and the interim Order, VCAT can then assess whether to keep in place (affirm) the interim order or vary, revoke or make any relevant changes to the Order.

Tip: If you obtain an interim restraining order you should place a copy of the order on your front door so the landlord knows they cannot enter. Make sure you keep a copy for yourself. And take a photo of the notice on the door as evidence.

Tip: We strongly recommend you keep evidence of any breaches of the Order. For example, you could use your phone to record the breaches. You should then present this evidence at the full hearing.

A new Residential Tenancies Dispute Resolution Scheme (RTDRS) has been set up that creates a new step in the process if you want to apply to VCAT.

As part of this new step, before you apply to VCAT you must first register with Consumer Affairs Victoria.

Consumer Affairs Victoria must assess all disputes to decide if they should be referred:

• under the Scheme for , or
• to VCAT.

To apply to VCAT, you need a reference number from Consumer Affairs Victoria.

How do I get a reference number for my VCAT application?

The first step is to register the details of your dispute with Consumer Affairs Victoria:

• Coronavirus (COVID-19) rental agreement or dispute [CAV website]

If Consumer Affairs Victoria needs more detail, they will contact you. If they decide the dispute can go to VCAT, they will give you a reference number to include in your VCAT application.

What if it’s urgent?

If you need to make an urgent application to VCAT, for example:

• you are being threatened with illegal eviction and need a restraining order
• your rights are being interfered with and you need an urgent restraining order

Tenants Victoria recommends you call Consumer Affairs Victoria on 1300 558 181 after you have registered the details of your dispute, and request they give you a reference number over the phone to allow you to make an urgent application.

Tip: we recommend you have your VCAT application ready so you can lodge it with VCAT as soon as Consumer Affairs Victoria gives you a reference number.

For urgent applications to VCAT during this time, we recommend that you:

• apply online or via email, see: VCAT Application by a tenant or landlord [VCAT website]
• mark your application “urgent”, and
• call VCAT to:
  1. confirm they have received your application
  2. tell them you want an urgent interim order
  3. check that the hearing will happen urgently (not in 3-4 weeks).
  4. get the hearing date and time sent to you in writing so you have a record.

TIP: you should include the reference number from Consumer Affairs Victoria in your application and in any emails or letters you send to VCAT about your application.

Typically, you should receive a notice of your VCAT hearing by post. However, you may receive notifications by phone call or text message.

If or when your application is listed for a full hearing, make sure the landlord or agent also knows the hearing date and time to avoid any unnecessary delays.

Hearings will be by phone until further notice. For the latest information, see the VCAT hearings during coronavirus restrictions [VCAT website].

Our understanding is that hearings may not run strictly on time, so make sure you leave extra time before and after your scheduled hearing time.

VCAT must still observe all other requirements including facilitating a procedurally fair hearing. This means you must be given a proper right to tell VCAT your side of the story and why you are asking for the relevant order (put forward your submissions) and respond to the landlord’s side of the story defend any claims made against you).

You should still be prepared to present all your relevant evidence. For example, text messages with threats of unlawful entries.

It is important to include your evidence with the application to demonstrate to VCAT why it is urgent.

If you need to submit evidence for a hearing, the latest advice from VCAT is that you can email it to VCAT. Make sure you quote the proceeding reference and mark it as “urgent”.

If you do apply to VCAT, you can request written reasons, which will be publicly available. This may help other tenants who face similar situations.

There is a difference between a restraining order made by VCAT and a Personal Safety Intervention Order (PSIO), which is made by the Magistrates’ Court of Victoria. A PSIO is a court order to protect a person, their children and their property from another person’s behaviour.

An intervention order has great utility in terms of protection against violence and arguably has more serious consequences when breached. The existence of an intervention order is not a criminal matter but if it is breached that could amount to a criminal charge.

In comparison, a restraining order in VCAT is considered a civil order and while the police should be able to enforce it, they don’t always. We recommend that you still refer to the police for assistance. If a restraining order is breached, you could apply to VCAT for an order against the other party for contempt or refer the Order to be registered in the Supreme Court of Victoria requiring compliance.