A non-molestation order is a court order (an injunction) that stops a person from molesting (mistreating or harassing) another named person. This is personal protection from domestic abuse.[1]
The court can only make the order where the person making the application (“the applicant”) is ‘associated’ i.e. has or has had some sort of relationship with the person whom the court is ordering to stop molesting the other person (“the respondent”).
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The court may make a non-molestation order where the respondent is a party to an application made under the Family Law Act even if an application for a non-molestation order has not been made.[2] The court may also consider making a non-molestation order when it is considering whether to make an occupation order.
An occupation order is an order making rules about who can live in a house, how they must behave in the house and which parts of it they can use. It can tell a person they must leave a house, must not go within a certain distance of it, or down the street it is on.[3]
The court has wide discretion in whether to grant the application for a non-molestation order and will consider all the circumstances including the need to secure the health (physical and mental), safety and well-being of the applicant and any relevant child(ren).
The court will consider the evidence of ongoing molestation, that the applicant or child(ren) needs protection, and the judge must be satisfied that the court’s intervention is required to control the respondent’s conduct.
There is no fixed length for an order, and it is up to the court how long an order would last.
The term molestation is not defined by statute but can be seen from cases where molestation has been considered. Any form of physical threats violence or harassment which requires the intervention of the court is referred to as molestation.[4] Whilst violence or threats of violence are included in the term molestation, the court has made clear that molestation also includes “conduct which does not amount to violent behaviour.” [5] The court has considered molestation may be ‘pestering.’ i.e. ‘to cause trouble; to vex; to annoy; to put to inconvenience’.[6] Even where the act complained of though deliberate was not intended to cause harm the court may make a non-molestation order.
Conduct which constitutes molestation would include the following acts of domestic abuse:
- physical or sexual abuse;
- violent or threatening behaviour;
- controlling or coercive behaviour;
- economic abuse;
- psychological, emotional, or other abuse; and
- Economic abuse.[7]
It is a criminal offence for a respondent to do anything that the Non-Molestation Order states that the respondent must not do (“breach”). Any breach of a non-molestation order can lead to the respondent being imprisoned for up to five years.[8]
When it receives an application for a non-molestation order, the court may, if it considers that the applicant needs immediate protection, make an order without the respondent being given notice of the hearing. At such a hearing the court, although the court will not make any findings, will proceed on the basis that the evidence presented is true and will make the order on a temporary (interim) basis to protect the applicant. The court will then list a further hearing (return date) where the respondent will be invited to respond to the application and the court would then consider whether to make the temporary order final and/or any other steps which need to be taken to finally decide the application.
If the court doesn’t believe that the facts justify an order being made without notice to the respondent, the court will request both parties to attend court and allow the respondent an opportunity to respond to the application (on notice). At that hearing, if the respondent disputes the allegations, makes their allegations against the applicant, or says that the order is not necessary or proportionate then the court will list the matter for a contested hearing (final hearing).
At the final hearing, the court will hear evidence from both parties to assist the court decide the matter fairly.
[1] Family Law Act 1996, s42(1)(a)(b) [2] Family Law Act 1996, s42(2)(a)(b) [3] Family Law Act, 1996, s33 [4] [2001] EWCA Civ 1625 [5] [1979] AC 264 [6] [1973] 1 WLR 1159 [7] Domestic Abuse Act, 2021 s1 and Family Procedure Rules 2010, Practice Direction 12J [8] Family Law Act 1996, s.42(A)(1)
