Ex-parte Non-Molestation Order

There has been an increase of Non-Molestation Orders applied for in recent years. The High Court and the President of the Family Division have recently provided further guidance around Non-Molestation Orders. This guidance includes how they deal with applications for an ex-parte Non-Molestation Order.

What is an Ex-Parte Non-Molestation Order?
Photo by Romain Dancre on Unsplash

What is an Ex-Parte Non-Molestation Order?

An ex-parte non-molestation order is an order made without notice to the Respondent. This is to protect the Applicant from the Respondent’s behaviour. The Respondent will not be aware of the application until after the court has considered the application.

When Might You Need an Ex-Parte Non-Molestation Order? 

There are many reasons why you may need an ex-parte non-molestation order, here are a few examples:

Imminent Danger

When you believe that you or someone else is in immediate danger of harm. Such as in cases of severe domestic violence or threats. You may request an ex-parte order to provide immediate protection.

Fear for Your Safety

If you fear for your safety or the safety of your children due to the actions or threats of another person. You can apply for an ex-parte order to prevent contact or harassment.

Urgent Circumstances

In some cases, there isn’t enough time to wait for a full court hearing. This often happens over weekends or holidays when the court is closed. You may seek an ex-parte order to obtain immediate protection.

Evidence Preservation 

You can ask for an ex-parte order. This order can prevent the other party from destroying evidence. It can also stop them from avoiding authorities during a legal case.

Violation of Existing Orders

If the other party has violated an existing restraining order or non-molestation order. You can request an ex-parte order to address the immediate breach of the order and enhance your protection.

The Law Around Ex-Parte Non-Molestation Order
Photo by Pixabay

The Law Around Ex-Parte Non-Molestation Order

Law

Under the Family Law Act, a without notice non-molestation order should only be granted where:

  1. The Applicant and/or the child is at significant risk of harm due to the behaviour of the Respondent;
  2. The Applicant will be deterred or prevented from pursuing the application if an order is not made immediately; or
  3. There is reason to believe that the Respondent is aware of the proceedings but is deliberately avoiding service of the order and the Applicant and/or relevant child will be at risk by a delay in serving the Respondent.

Case Law

In March 2023, the High Court passed judgement in the case of DS v AC (2023). 

The current law does not provide a definition for “molestation.” Therefore, the Judge attempted to define molestation using existing case law. The court determined that molestation does not necessarily imply either violence or threats of violence. But, it can cover any degree of harassment that requires the intervention of the court.

Further to this, the court made their focus clear. The court should focus on the “harassment” or “alarm and distress” caused to the Applicant. 

The Respondent does not need to have an intention to cause harassment, alarm or distress to the Applicant. However, distress alone does not justify making the order. The Respondent’s conduct must be of a nature or degree that justifies the intervention of the court.

Finally, the court confirmed that the Court should use its powers to grant a non-molestation. This is without notice to the Respondent with caution.

Guidance

The court must find a balance between the applicant’s need for protection and the respondent’s rights. The guidance also confirms they will only make an order without notice under exceptional circumstances.

Key Considerations When Applying for an Ex-Parte Non-Molestation Order

When you apply for an ex-parte non-molestation order, it is important to provide enough evidence. This evidence should show why the court needs to step in. Evidence can include witness statements, police reports, photos, text messages, or emails. These items show the threat, harassment, or harm caused by the Respondent.

The Court

Immediate protection is always the priority. However, the court also needs to establish that the order is both necessary and proportionate.

Provide Details

To be successful the applicant should provide as much detail as possible about the circumstances leading to the application. Including behavior, any recent incidents, and why a full hearing would place the Applicant or a child at risk.

Evaluating Risk

The Family Court carefully evaluates whether there are imminent threats or risks of harm. Detailed evidence is critical as the court will later determine the order. As well as the extent to the order once the Respondent has had an opportunity to present their case.

Impact of Ex-Parte Non-Molestation Orders

Ex-parte non-molestation orders provide critical protection for individuals and families at risk of harm. These orders can immediately restrict the Respondent from contacting the Applicant. Preventing them to visit their home, workplace, or children’s schools, and engaging in harassment or intimidation. In some cases, they also provide legal grounds for removing the Respondent from shared living spaces.

Immediate Effect

The immediate effect can be life-changing, particularly for victims of domestic violence, stalking, or ongoing harassment. They create a legal framework that empowers law enforcement to act quickly if the Respondent breaches the order.

Consequences of Breaking Ex-Parte Non-Molestation Orders

Breaking a non-molestation order can lead to serious consequences. These may include arrest, fines, or even jail time. This serves as a strong warning against more harmful actions.

The Respondent’s Rights

Although ex-parte orders can offer immediate protection, the Respondent’s rights remain a central consideration in the legal process. The court will inform the respondent of the order and will have an opportunity to contest in subsequent hearings. This ensures fairness and balance, as the court must consider whether the allegations are valid and justified.

Disputes

If the Respondent disputes the allegations, the court may request further evidence. Including witness statements, or cross-examinations to establish the truth. The judge will decide whether to maintain, amend, or discharge the order based on the balance of probabilities.

The Importance of Legal Support

Given the complexities surrounding ex-parte non-molestation orders, seeking legal advice is essential. Experienced family law professionals can help applicants with the process. They make sure applications are complete, based on evidence, and presented well in court. Legal support also ensures the protection of all parties rights, and justice is fairly administered.

View our legal aid and fees page for more insight.

Conclusion

In conclusion, the Courts have made it harder to apply for a Non-Molestation Order without telling the Respondent. The Court must consider whether there have been recent incidents that require the intervention of the Court. The Applicant must prove this for the Court to make such an Order.