Non-Molestation Orders Explained

21 August 2019

By Family Law Case Manager, Emma Neal

A Non-Molestation Order, otherwise known as a Restraining Order, is just one type of Court Order that you may be able to obtain via the Family Court if you are subject to violent behaviour, threats of violence or harassment.

How to Apply for a Non-Molestation Order

An application for a Non-Molestation Order is made under Section 42 of the Family Law Act 1996. This type of Order prohibits a person from 'molesting' the Applicant (the person who applies for the Order) if they are behaving towards them in the above way. The Order can be applied for to protect both the person applying and any child that may be concerned.

It is important to note that to apply for a Non-Molestation Order against somebody, the Respondent (the person whom the application is being made against) must be considered an 'associated person' to you. This could be, for example, someone that you're currently/previously married to (or in a civil partnership with), related to, in a relationship with or previously lived with, etc.

When deciding whether to grant the Non-Molestation Order, the Court will consider many factors. They will be looking to establish whether there is a genuine need for protection. If the Judge is satisfied that the person has caused you alarm or distress on at least two occasions, then the Order is likely to be granted.

An application can also be made on an emergency basis, which is called an Ex-parte application. In these circumstances, the Court can grant the emergency Non-Molestation Order until a further hearing has been listed, where the Respondent will have the opportunity to dispute the application. These applications are made without the Respondent being notified.

How Long Will the Non-Molestation Order Be Granted For?

At the first hearing the Court will only usually make an interim or temporary Non-Molestation Order. This Order will last until a final Hearing, when full evidence can be heard for the Court to determine if the Non-Molestation Order should be made final or not.

If a final Non-Molestation Order is made then it is up to the Court to decide on the appropriate duration, but they usually last either six months or a year. A Non-Molestation Order can be made indefinite in special circumstances.

What Happens if the Respondent Doesn't Attend Court?

If the Respondent fails to attend Court on the day of the hearing, then the Court may make the Order in their absence. The applicant will need to prove the Respondent has been sufficiently served with the application and notice of the hearing date.

What Happens if the Respondent Breaches the Non-Molestation Order?

Breaching a Non-molestation Order is serious. If this happens, the Non-Molestation Order would be provided to the police so that they have a copy on their file. Breaching a Non-Molestation Order is a criminal offence and the police have the power to arrest the Respondent for this. The maximum penalty for breaching a Non-Molestation Order is 5 years imprisonment, a fine or both. If there is any breach of the Non-Molestation Order then you must report this to the police immediately.

After making a final Non-Molestation Order the Court also has the power to hear Applications for discharging the Order or varying it, if a change is required.

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