Non-molestation order - what is it, how to apply and evidence needed

What is a non-molestation order?

A court order which prohibits your ex-partner from using or threatening violence against you or instructing a third party to do so. A non-molestation order can include very specific provisions based on the situation. For example, prohibiting all telephone communication where there has been a pattern of harassment via these means.

How to apply for a non molestation order

For an application to be successful, there must be the following;

1. evidence of the behaviour complained of; and

2. evidence that the applicant or a child are in need of protection; and

3. that an order is needed to control the behaviour of the respondent.

An order only becomes effective when it has been served on the respondent. Breach of a non-molestation order is now a criminal offence and gives the police power to arrest.

Evidence needed

There is no single piece of evidence that guarantees being granted a Non-molestation order ("NMO") by the court. so it's important to build a strong case requires demonstrating a real and immediate risk of harm.

Compelling evidence may be in the form of :-

• Witness statements - a detailed account of the incidents you experienced, with specific dates, times, and locations. Include descriptions of the behaviour, your emotional response, and any witnesses present.

• Police reports - records of any incidents reported to the police.

• Medical records - if you sustained injuries, provide medical records or doctor's notes as evidence of physical harm.

• Social media/electronic communication - screenshots of harassing or threatening texts, emails, or social media messages can serve as powerful evidence.

• Photographs or recordings - if available, any visual or audio recordings of the incidents can be highly persuasive.

• Third-party evidence - statements from neighbours, friends, or colleagues who support your claims can add weight to your case.

Court Process

Your non molestation application will be heard by a judge in a private family court hearing. Be prepared for the following:

• Attendance - unless the application is extremely urgent and you are potentially in immediate risk of harm, both you and the respondent have the right to attend the hearing, though the respondent may choose not to be present.

• Legal representation - while having a lawyer isn't mandatory, legal advice can be invaluable in navigating the process and presenting your case effectively.

• Judge's assessment - the judge will consider all evidence presented before deciding whether to grant the Order or not,  and if made its terms and duration.

• Terms of the Order - if granted, the Order will typically specify prohibited behaviors, geographic restrictions, and potential consequences for breach.

How to apply for an urgent non-molestation order

If you think there are exceptional reasons, you may ask the court to consider your application immediately and without the respondent being served with any documents (‘ex-parte’, also known as ‘without notice’). Any order which is made will still need to be served after the hearing.

If an order is made without notice, you will be given a further appointment to attend the family court hearing. The respondent is entitled to be present at this appointment. This gives the judge time to consider both sides of the stories before deciding whether to make another order.

The Court's Approach

The court takes NMO applications seriously, prioritising the safety and well-being of the applicant. Judges assess each case based on the balance of probabilities:

• Is the applicant presenting genuine fear of harm?

• Does the evidence support a real and immediate risk of harm?

• Is an NMO the most appropriate course of action to protect the applicant?

The court also considers any history of violence or controlling behavior by the respondent and the potential impact of an NMO on both parties.

Occupation order application at same time as non molestation

An occupation order determines who can live in the family home, excluding the abusive partner if necessary. It can also regulate access to the property for the excluded party and can also extend to who can enter the surrounding area if necessary. . It is common to apply for both a non-molestation order and an occupation order at the same time.

These orders are often sought together, particularly in domestic abuse situations, as they provide comprehensive protection for the victim.