RESTRAINING ORDERS ACT 1997 - SECT 45

RESTRAINING ORDERS ACT 1997 - SECT 45

45 .         Application

        (1)         An application to vary or cancel a restraining order may be made by —

            (a)         the person protected by the order; or

            (b)         a police officer on behalf of the person protected by the order; or

            (ba)         in the case of an application to a court exercising criminal jurisdiction, the person conducting the prosecution on behalf of the person protected by the order; or

            (c)         the person bound by the order.

        (2)         An application to vary or cancel a restraining order may also be made —

            (a)         if the person protected by the order is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or

            (b)         if the person protected by the order is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990 , by the guardian on behalf of the person; or

            (c)         in the case of an FVRO, by a person who is able to make an application for an order under section 24A(2).

        (3)         If the original application for a final order was made by a police officer on behalf of the public generally an application to vary or cancel the order may be made by a police officer on behalf of the public generally.

        (3A)         An application to vary a restraining order may be an application to vary a VRO made before 1 July 2017 to an FVRO.

        (3B)         An application to vary or cancel a restraining order may be made to any court with jurisdiction to make such an order (including a court that is different to the court that made the order but not including a court that is an inferior court to the court that made the order).

        (4)         Except as provided in subsection (7), an application to vary or cancel a restraining order is to be made in the prescribed form.

        (5)         The prescribed form is to contain a brief summary of the effect of subsection (6).

        (6)         If an application is made to vary —

            (a)         a restraining order that is a final order; or

            (b)         an MRO,

                which includes an application to vary the order by extending the duration of the order, then, despite anything else in this Act, the order is not to expire before the application is determined if the person bound by the order has been served with a summons under section 47.

        (7)         Except as provided in subsection (8), an application to vary or cancel a restraining order made to a court exercising criminal jurisdiction may be made as part of the criminal proceedings and without the need to comply with subsection (4).

        (8)         A court exercising criminal jurisdiction must not vary or cancel a restraining order as part of the criminal proceedings unless the person bound by the order is present and that person, and the person protected by the order, have had an opportunity to make submissions on the matter.

        (9)         Subsection (8) does not apply in the circumstances applying under section 63A.

        [Section 45 inserted: No. 22 of 2000 s. 10(1); amended: No. 38 of 2004 s. 27; No. 32 of 2011 s. 13; No. 49 of 2016 s. 51; No. 30 of 2020 s. 68.]