At AFG LAW solicitors we understand that it can be concerning to find out a non-molestation order has been made against you in your absence or that an application has been made and you have to attend a hearing. Our solicitors can provide you with advice about the application and represent you during the court process if you are Respondent to a non-molestation or occupation order.
What is a Non-Molestation Order?
A Non-Molestation Order is an order made by a Judge in the Family Court. It is designed to protect the person who has applied for the order against the person who they say is subjecting them to domestic abuse. The order can do this in a lot of ways including:
- Stopping someone from using or threatening violence
- Stopping someone from intimidating, harassing or pestering the other person
- Stopping someone from contacting or trying to contact another person including by telephone, text, email, social media or any form of electronic communication
- Stopping someone from damaging, attempting to damage or threatening to damage any property owned by you or in your possession
- Stopping someone from damaging, attempting to damage or threatening to damage the home or the contents of the home
- Stopping someone from entering or attempting to enter the home, going within 100 metres of the home or the road the home is on
- Stopping someone from going near a school, nursery or somewhere else that the children attend
The order can also stop a person from instructing, encouraging or suggesting any other person should do anything on their behalf, for example, getting a family member to harm someone for them. The order can also be made to specifically protect children of the family too.
Why was a Non-Molestation Order made by a Judge without me knowing about the hearing?
Sometimes applications are made without telling the person who will be subject to the Non-Molestation Order. This is called ‘without notice’ and means exactly that – the order has been made without giving the other person notice of it. This is slightly different to the normal rules in the family court and can only be done if the Judge is satisfied that there are grounds for the application to be made without notice to the other person. Reasons that might be accepted by the court for why a hearing should be without notice include; when there might be a greater risk to the person seeking protection if the Respondent found out they were going to make an application; or, if there is a fear that if the Respondent knew an order was likely to be made, they might ‘disappear’ to make it harder to serve them with the order. Non-molestation orders are extremely serious and if a request is made for a non-molestation order to be made without telling the other person then the court will look at this carefully. If a Respondent is not aware of the application for a non-molestation order, because the application has been made ‘without notice’, then the Judge at the first hearing may make an order in their absence but will list the matter for an urgent hearing to allow the other person to attend the court at the earliest opportunity and confirm their position. Our solicitors can review the application and explain the basis on which the application was made ‘without notice’ and explain this to you.
I’ve been handed a Non-Molestation Order personally. Why?
You have been handed the non-molestation order as it is important that you are ‘personally served’ and the court will usually insist on a Respondent being personally served although it is possible to be served in other ways as well. The person who personally served you is often called a ‘process server’ and after they have served you they will complete a statement of service confirming when and where you were served with the non-molestation order, application and other documents. This statement is then sent to the Court and also the police to prove that you are aware of the order. Once you are aware of the order if you do anything that the non-molestation order says you are not allowed to do then you are in breach of the order and the police can arrest you. It is important that you do not breach the order once you become aware of it, whether by being handed it or any other means of service.
What should I do if a Non-Molestation Order has been made against me?
It is important that you read the non-molestation order, application and statement carefully. You need to know what has been said to the Court and what the Court has decided to prevent you from doing. You must not breach the court order by doing anything the non-molestation order says you should not do. Early legal advice is essential in these situations as if you breach the order you will be committing a criminal offence. It is extremely important that you attend the ‘return date’, you should make a careful note of the time and date of the hearing. If you don’t attend the hearing an order can be made in your absence.
Do I have to follow the terms of the Non-Molestation Order?
Yes. It is a court order and breach of a non-molestation order is a criminal offence.
If you don’t agree with why the order was made, and want to challenge the Non-Molestation Order, you must still obey it whilst you are waiting for your hearing. If you do something that you are prevented from doing by the non-molestation order it will be a criminal offence and you can be arrested by the police and charged. It is also does not show the court that you have respect for court orders and is potentially going to undermine any arguments about why the non-molestation order is not necessary and should not be in place. Our domestic abuse solicitors can provide specific advice tailored to your circumstances.
What happens at court if I attend the return date?
Our solicitors understand that attending court can be difficult and are experienced in providing clear, straightforward device for your individual position. There is no ‘one answer fits all’ advice about responding to a non-molestation order and it is important to have an honest conversation and carefully think about your situation. There are different choices that people can make, some people may agree for the non-molestation order to stay in place, alternatively others might want to explore whether undertakings could be made on a ‘without prejudice’ basis i.e. without the court deciding whether the allegations are true and others may want to contest the order and have a final hearing where both parties, along with any witnesses, give evidence and are cross-examined. Our solicitors can explain the different options to you and give you advice based on the evidence and your circumstances, contact us today for a free initial discussion.
What does the court look at when making a Non-Molestation Order?
When a Judge is deciding whether to grant a non-molestation order the Family Law Act 1996 says the Judge shall “have regard to all the circumstances including the need to secure the health, safety and well-being of the person applying for the order and any relevant child”.
‘Molestation’ is not defined specifically in the Family Law Act 1996 but, through previous decisions made by the family courts known as ‘caselaw’, different examples of what is accepted have been given and molestation covers everything from violence to pestering/harassing someone.
‘Health’ is defined as meaning both physical and mental health so the court will accept that behaviour can impact on people in different ways.
What happens at a Non-Molestation Order final hearing?
If you have decided to contest an application for a non-molestation order a date will be given for a contested final hearing. A range of directions will be given along with a timetable of when they should all be completed and sent to the Court and the other party. The directions that might be relevant to one person might not be relevant to you so it is important that you speak with one of our domestic abuse solicitors about your personal situation. Directions could be made for statements, police evidence or medical evidence, for example. At the final hearing both the Applicant and the Respondent, along with any witnesses, will have to give evidence and also be cross examined. Once the Judge has considered all the evidence, both written and oral, the Judge will make a decision about the allegations and whether an order is needed to secure the health, safety and well-being of the person applying for the order and any children.
I didn’t turn up for the Non-Molestation Order return date. Can I change or set aside a Non-Molestation Order?
It is important that you attend the return date and if you have a good reason for not being able to attend on that date our solicitors can contact the court and Applicant and ask for it to be moved to another date. If you don’t attend the return date it is possible to make an application at a later time to change or set aside a Non-Molestation Order. Our solicitors can provide you with specific advice and can arrange a convenient appointment in person or by telephone or video call.
