Non-Molestation (injunctive) Orders

At Blanchards Law, we are accustomed to dealing with all aspects of relationship and family breakdowns.

Sometimes, this relationship breakdown escalates from the quite normal tensions between the couple to an untenable situation. The conflict between a separating couple can also affect any children of the family or even other immediate family.

If the acrimony and conflict heighten to acts that amount to harassment, the family court has powers to grant a Non-Molestation Order, which is commonly known as an injunction to protect the victim. 

A Non-Molestation Order prevents a person from molesting/harassing another person. The power to make an Order is set out under Section 42 of the Family Law Act 1996. It is also possible for a child to be protected. Applications which include a child/children may affect any contact the receiving person has with the child, so careful consideration should be made prior to adding any children to an application.

When considering whether to make an order, the court will look at all the circumstances, including the health, safety and wellbeing of the applying person and any ‘relevant’ child/children. The relevant child is normally a child of the couple, and living with one or both of them, and therefore exposed and affected by any abuse or threats of it.

A Non-Molestation Order is an order obtained through the Family Court. The order, if granted, prevents the receiving person to the order from “harassing” the person who has applied. The order usually specifies that the receiving person cannot use or threaten violence but may also stop other, more general behaviours, which amount to harassment or causing distress. It will also prevent the person from encouraging any other person (i.e. their friends or family) to cause harassment to the victim.  They can include ‘zonal’ clauses, stopping a person from attending an area surrounding the victim’s place of work or where they live, unless invited, in writing or ordered by the Court. 

Non-Molestation covers incidents as serious as assaults, all the way down to pestering and general harassment. This can include shouting, sending abusive letters, constant phone calls or text messages and even social media posts. This list is not conclusive. To apply, there is no requirement for violence or threats of violence. In general, an application requires to show any conduct constituting harassment which requires the protection of the Court. The court will expect to see some form of harassment before granting an order. An act would need to be viewed as committed with the intention of causing distress to the victim. 

The court will make the order for a specific period of time, which is usually 12 months; when this ends, you can apply to have the Order extended for longer periods of time, for example until the end of any other family proceedings, such as an application dealing with financial matters, which can often take some time to settle. You would need to prove to the court there is a risk of the behaviour continuing when the order finishes. In rare circumstances, these orders can be in place for an indefinite period of time.

These Orders can be a deterrent but, unfortunately, it does not always stop serious offenders from trying to contact or see the person who has applied for the Non-Molestation Order. If you are granted a Non-Molestation Order, it is always advisable to lodge this with the police so that they are aware of its existence, should they be required in an emergency.

Breach of a Non-Molestation Order is a criminal offence. If the police are notified of the breach, they should arrest the offender. Any breach of the order can be dealt with by a fine or up to five years imprisonment, but this is uncommon, especially for an initial or minor breach. Any persistent or serious breaches may well do. 

When making any application consideration needs to be made whether the application should be made ‘without notice’ or ‘on notice’.

A without notice Application is one which is made, without warning being given to the receiving person. This can be done in cases where the Court considers that the person applying or any relevant child is at risk of significant harm, if an Order is not made immediately and/or if the receiving person is aware of the application being made. If it is considered that you should make an without notice application then we will advise you accordingly.

If an application is made on notice, then it means that the receiving person will be sent the application and supporting documents (which is usually your written statement) before an Order is made, they will then be advised of any hearing date so that they can attend.

If the Application is made without notice, then a hearing will take place imminently (normally the same or the next day). At that hearing, you may have a legal representative with you, and we will tell the court what your position is, and ask that the judge gives us the order that we want. The Judge will consider the Application and make such Order as he/she sees fit. This Order will be made in the absence of the receiving person who will be unaware, at that stage, of your application. 

After the hearing we will make arrangements for the Order and supporting documents to be formally handed to the receiving person, by arranging for someone to attend the receiving party’s home/place of work or somewhere you know we could find them. Once it is handed to them, the Order is in force, before this happens, it is not.  

The Order will contain a further Hearing date, referred to as the return date hearing. The receiving person will be told of the date and location of the hearing and can therefore attend and put their case to the court. 

There are occasions when the court will simply deal with the application ‘on paper’ meaning we will send the application by email to the court and no attendance will be required by us or you. The sealed order (if granted) will then be sent to us to ensure it is personally handed to the receiving person.

On the ‘return’ date, both you and the accused are present at Court, the matter may then proceed in one of three ways;

1. The Judge may make a further Order, lasting for a specific period i.e. six or twelve months 
2. The accused may offer an ‘undertaking’ in an effort to settle the case. 

An Undertaking can be accepted by the Court and differs from an Order. An Undertaking is a promise to the Court, usually in the same terms as a Non-Molestation Order (e.g. not to use or threaten violence etc). An Undertaking is usually accepted at an early stage in the proceedings to avoid the need of having to attend a final hearing, where you would both be expected to orally give your version of events and be questioned. Although the Police cannot arrest the accused for breach of an Undertaking (like they can for breach of a Non-Molestation Order) any breach would still place them in contempt of Court and they may be sent to prison.

1. The Judge may list the case for a final hearing if no agreement can be reached as to how the case should conclude. If this happens, the Judge may give instructions (known as directions), for example, ask you both to provide witness statements by a specific date and/or ask for any expert reports that the court may find helpful. The court will then list the case for a final hearing when both parties will be expected to attend and give oral evidence. The Judge will then decide the outcome having read everyone’s statements and heard them answering questions in the witness box. If an Order has already been granted (i.e. without notice) the order will usually continue in the period between the return hearing and the final hearing.

If you believe you are in need of protection from a person harassing or otherwise abusing you, please do not hesitate to contact us to make an appointment for a free consultation with one of our knowledgeable members of staff here who would be happy to discuss this with you.