(1) An application for
the court to vary or cancel a restraining order may be made by a police
officer nominated by the Commissioner of Police or, with the leave of the
court, by the person against whom the order was made.
(2) The application is
to be made —
(a) if
the person against whom the order was made is a child, to the Children’s
Court; or
(b)
otherwise, to the Magistrates Court,
and is to be
accompanied by an affidavit in support of the application.
(3) If subsection (1)
requires the leave of the court for an application to be made, an application
seeking leave is to be accompanied by an affidavit disclosing all facts
material to the application, whether supporting or adverse to the application,
that are known to the applicant.
(4) Neither the
application nor the affidavit are to be served on the person upon whose
application the restraining order was made (in this section called the
respondent ) unless the court orders under subsection (6) that they are to be
served on the respondent.
(5) Even though the
giving of leave may not be prevented by subsection (7), the court may refuse
the application for leave if it considers that —
(a) the
affidavit does not disclose everything required by subsection (3) to be
disclosed; or
(b) the
facts disclosed by the affidavit do not give sufficient reason to vary or
cancel the restraining order.
(6) Before the court
grants an application for leave it is to —
(a)
order that a copy of the application and accompanying affidavit be served on
the respondent; and
(b) give
the respondent an opportunity to oppose the application for leave.
(7) Leave is not to be
given unless the court is satisfied there has been a substantial change in the
relevant circumstances since the restraining order was made.
(8) The person against
whom the order was made and the respondent are to be given an opportunity to
be heard at the hearing of an application to vary or cancel a restraining
order.
(9) At the hearing of
the application to vary or cancel a restraining order, the court may receive
as evidence any record of evidence given or affidavit filed in connection with
an application for leave mentioned in subsection (3).
(10) The court may
dispose of the application to vary or cancel a restraining order by —
(a)
dismissing the application; or
(b)
making a new restraining order in addition to the original restraining order;
or
(c)
cancelling the original restraining order with or without making a new
restraining order.
(11) Anything in this
Part that applies to a restraining order made in the first instance also
applies to a new restraining order made under this section.
[Section 42 amended: No. 59 of 2004 s. 141.]