Can I Challenge a non-molestation Order?

05 Jul 2023

Published in: Member News

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If a non-molestation order has been made against you and you wish the order to be challenged.

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If a non-molestation order has been made against you and you wish the order to be challenged. Yes, an application can be made to challenge the order and potentially get it discharged. However, this may not be ideal depending on the circumstance of the case.

What is a non-molestation Order?

The term molestation Is defined in the Family Law Act 1996 as including any conduct which could be regarded as ‘harassment.’ This conduct must have affected the applicant.

The non-molestation order includes one or both of the following provisions:

• A provision prohibiting the respondent from molesting another person who is associated with the respondent.

OR

• A provision prohibiting the respondent from molesting a relevant child.

The applicant and the respondent must be ‘associated’. This is because the non-molestation order can only be applied for and obtained by ‘associated persons.’ There are a number of definitions for what’s considered ‘associated persons.’ However, the most common are:

• Those who have been married.
• Those who have been partners.
• Been in a civil partnership.
• They are parents of the relevant child.

The ‘relevant child’ to the proceedings means the child who is living or expected to live with either party or any child who’s interest the courts consider relevant. The court when its deciding to impose a non-molestation order have regard to the circumstances of the case including the need to secure the wellbeing and safety of any relevant child, the applicant or any person of whose benefit the order would be made for.

For an application of a non-molestation order to be made, the applicant must provide evidence of the harassment suffered by them or the child in need of protection and that it is clear legal proceedings are required to control the behaviour of the respondent.

How can a non-molestation order be challenged?

If the applicant applies for the non-molestation order ‘ex-parte’ meaning without notice, there is only a short period between the court hearing and the granting of the non-molestation order. Therefore, you may not be made aware that a non-molestation order is being made against until after it has been granted.

If you wish to challenge the order, you must prove that the accusations made by the applicant in the order are false. This is determined through a court hearing where both you and the applicant will need to be present to provide a statement to the judge. The judge will then consider these statements and make judgement on whether the order should stand.

The non-molestation order will be discharged if you are successful. However, if the judge decides the order should continue to stand, there could be implications on other proceedings concerning your divorce or relevant children.

Are There Any Other Options?

Undertakings are an option if you don’t wish to challenge the order. It is an option that saves time and means you can walk away from the court without a non-molestation order or accusations being made against you. However, an undertaking cannot be accepted where it is clear the respondent has used or threatened violence against the applicant or relevant child.

Do I have to Follow a non-molestation Order?

If the non-molestation order is still in place, yes, you must comply with the conditions of the order. If you do not follow the order, it is an arrestable offence with a maximum imprisonment of five years.

If a non-molestation order Is made against you, it can produce complications with the children that you share with your former partner. The order could threaten your reputation and if you fail to comply, cause you to be arrested and face criminal prosecution. Therefore, seeking advice about whether to challenge the non-molestation order or apply for an undertaking would be substantially beneficial in helping you reach the best decision.

Contact Us

If you wish to discuss your situation or any issues raised in this blog our family solicitors are based in Wolverhampton, Cradley Heath and Sutton Coldfield and serve clients across the West Midlands. For all new enquiries, please call 01902 328 355 or complete our online enquiry form and a member of our team will respond.