If you are applying to the Court for a Non-Molestation Order, you need to be aware that there are two ways that the Court may deal with the application.
The way that the Court deal with the application will determine when a Non-Molestation Order may be granted, and how the Respondent finds out about your application and any Order granted by the Court.
How may the Court deal with my application?
There are two ways that the Court may deal with the application for a Non-Molestation Order:-
- The Court may deal with the application on an “ex-parte” basis. Ex-parte means “without notice”. In simple terms, if the Court deal with the application this way, the Court will make a decision about your application without initially asking the Respondent for their views. This means that the Court could grant a Non-Molestation Order without the Respondent being aware that an application has been submitted to the Court. If the application is successful and a Non-Molestation Order is made, then the Non-Molestation Order would be enforceable as soon as the Respondent is aware of the terms of the Non-Molestation Order (i.e. once they have been personally served with the Non-Molestation Order).
- The Court may deal with the application on an “on notice” basis. If the Court deal with an application this way, the Respondent will be notified of your application before the Judge makes any decision about whether or not a Non-Molestation Order should be granted.
When will a without notice application be appropriate?
Under the Family Law Act 1996, the Court has the power to grant a without notice Non-Molestation Order when it is just and convenient to do so when considering the circumstances of the individual case.
When deciding if it is just and convenient to grant an Order, the Court needs to consider all of circumstances of the case, including:-
- If there is a risk of significant harm to the Applicant or a relevant child, due to the Respondent’s behaviour, if the Order is not made immediately; and
- If it is likely that the Applicant will be deterred or prevented from pursuing the application if an Order is not made immediately; and
- If there is reason to believe that the Respondent is aware of the proceedings but is deliberately evading service and that the Applicant or a relevant child will be seriously prejudiced by any delay relating to service of an Order.
The Court will only grant a without notice Non-Molestation Order if it is necessary and proportionate. It is important to note that just because an application is made on a without notice basis, this does not mean that the Non-Molestation Order will automatically be granted.
It is therefore important that any application to the Court for a without notice Non-Molestation Order is detailed enough to allow the Court to make a decision about whether or not a without notice Non-Molestation Order should be granted.
What is the Court process for each type of application?
Without notice applications
If a Non-Molestation Order is granted on a without notice basis, then the Non-Molestation Order will need to be served on the Respondent. Once the Non-Molestation Order has been suitably served upon the Respondent, it will be binding against the Respondent, and they will need to stick to the terms of the Non-Molestation Order. If the Respondent breaches the Non-Molestation Order after it is served upon them, then they may be arrested.
When the Court grant the Non-Molestation Order, a return hearing will be listed, and you and the Respondent will be invited to attend the hearing. At this hearing, you and the Respondent will be able to make representations about whether you think that the Non-Molestation Order should continue or not.
At the return hearing, the Non-Molestation Order may be made final, and the proceedings will end. It is also possible that the Court decides that the Non-Molestation Order shall remain in place for the time being, pending a further hearing to consider further evidence from both parties. The application could also be dismissed.
With notice applications
If your application is dealt with on an on-notice basis, the Court will list the matter for a hearing, and you and the Respondent will be given the opportunity at the hearing to make your views known. The Judge will then make a decision as to whether or not a Non-Molestation Order should be granted. Proceedings may either conclude at that hearing, or further directions may also be granted by the Judge and a further hearing may be listed to consider further evidence from both parties.
If you require a Non-Molestation Order, please contact us on 01202 292 424.
Head of Department – Tim Flower
