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Sexual Offences Articles

How to get a Non-Molestation Order removed

If a non-molestation order has been granted against you and you believe that the order should not be in place, you have the legal right to apply to court to ask that the order be removed. Non-molestation orders are an urgent form of protection available to individuals at risk from abuse from those close to them. They can be granted on an ex parte basis, which means that the judge can decide to grant the order after only hearing from the applicant (the person who has applied for the order) before the respondent (the person who the order is taken out against) has had a chance to give their side of the story. The problem with this is that on some occasions, applicants for protection orders may paint a misleading picture to the court. This can lead to a non-molestation order being granted when there is evidence contradicting the applicant’s version of events.

If you are a respondent to a non-molestation order, you may object to being prohibited from committing certain acts that, according to you, you did not do in the first place. You may also feel that the terms of the order infringe your civil liberties without justification. If this sounds like you, read on to understand more about the non-molestation order process and how to apply to discharge a non-molestation order in the courts.

What is a non-molestation order (NMO)?

An NMO is an order under Section 42 of the Family Law Act (FLA) 1996 that prohibits the respondent from ‘molesting’ the applicant or a child in their care. Under the FLA, the term ‘molesting’ is not defined and the courts have resisted giving it a concrete definition. However, it is generally used to mean behaviour that comprises verbal, physical, emotional, psychological, or sexual abuse or harassment. The important thing to realise is that molestation does not require any violence or threat of violence.

Section 42A creates a criminal offence of breaching an NMO. If the respondent breaches the terms of an NMO ‘without reasonable excuse’ they have committed a criminal offence. You can only be guilty of a criminal offence if you are aware of the terms of the order that you are said to have breached. If you breach a NMO, you have not committed contempt of court. You have committed a specific offence of breaching an NMO. However, if you have breached the NMO with the applicant’s permission you are unlikely to be prosecuted for the breach. Say, for example, your partner invites you to their home, resulting in you breaching a term of the order that states that you must not go inside. In those circumstances, the court may take the view that you had a reasonable excuse for breaching the order.

The applicant has to inform the court under oath of the breach of the NMO. The court can then issue a warrant of arrest. If you are convicted for breaching an NMO, your case could be heard in the Magistrates’ Court or the Crown Court depending on the seriousness of the offence. The maximum punishment for this offence depends on where the case is heard. In the Magistrates’ Court, the maximum punishment is 12 months’ imprisonment or a fine, or both. In the Crown Court, you could also face up to 12 months’ imprisonment or a fine, or both.

What is the process for granting a non-molestation order?

The applicant will complete a form and submit it to the family court together with an accompanying sworn statement. An application for an NMO can be made within ongoing proceedings in the family court. Alternatively, a standalone application can be lodged.

An NMO is designed to be an urgent form of relief, which provides immediate protection to the application. Because of this, the court can grant an NMO ‘in any case where it considers that it is just and convenient to do so’ without giving notice to the respondent of the court hearing. As mentioned, hearing the application without notice, is also referred to as an ex parte hearing.

According to Section 45 of the FLA, when deciding whether to grant an application without notice, the court must consider:

  • any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
  • whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
  • whether 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 the delay in effecting substituted service.

Anyone can apply for an NMO, but children under the age of 16 have to obtain the permission of the court to make an application. The court must be satisfied that they have sufficient understanding to make the application. This does not prevent a parent or other adult, such as an older sibling, making an application for an NMO that also protects a child, usually a child in the same household.

The court will consider the written application and may also hear oral evidence from the applicant. If the application is granted without notice, a copy of the NMO will be given to the applicant. A copy will be served on the respondent and a copy will also be sent to the applicant’s local police station. If the court decides that the criteria for granting the application without notice are not met, it will list the case for a return date where both parties can attend. If the court decides that there is no evidence within the applicant’s application substantiating an application for an NMO, it could dismiss the application.

What if someone lies in order to obtain a non-molestation order?

Unfortunately, applicants sometimes lie or exaggerate their situation in order to obtain a non-molestation order. Intimate relationships are complicated and there are nearly always two sides of the story.

Without the other party there at court to present their side of the story, the court can sometimes hear a distorted perception of events at the time of the initial application for an NMO. Perhaps the applicant has set out your conduct but has neglected to mention their own role in what has taken place. Or perhaps they are exploiting the NMO process for other motivations, such as an ongoing dispute regarding custody of children. Fortunately, as a respondent to an NMO, you have a legal right to have your views heard by the court. If an NMO has been granted against you, and you believe that it should not be in place, you can apply to the court for it to be discharged.

How do I apply to discharge a non-molestation order?

If you have been served with a non-molestation order, you have the right to ask the court to discharge the order. Where the court exercises its power to grant a without notice application for an NMO, it must afford the respondent ‘an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.’

Usually, when you receive the order it will contain a date for a court hearing. You can wait for the court hearing and attend to explain your views as to why the court order should not be in place. Alternatively, as soon as you receive the order, you can make an application to court to discharge the NMO.

You will be given a court date to attend, where the applicant is also invited to be present. At the hearing, the court will hear from both parties and decide whether to grant a final non-molestation order, or whether to discharge the interim order. As an alternative to granting the final order, the court has the power to accept an undertaking from any party in the proceedings.

An undertaking is a solemn promise made to the court. It does not have the same power as an NMO because no power of arrest can be attached to it. An undertaking may not be granted in cases where the respondent has used or threatened violence against the application or a relevant child, and for the protection of the applicant or child it is necessary to make an NMO so that any breach is punishable as a criminal offence.

If other witnesses have relevant evidence to add, the court may adjourn the matter and list it for a case management hearing to make directions for the filing of witness evidence.

Where to get further help

If someone has taken out an NMO against you or you are being prosecuted for the breach of a non-molestation order, Stuart Miller Solicitors can help. Our experienced solicitors can represent you in your application to discharge an NMO. We can also act for you in criminal proceedings concerning the breach of an NMO. Arrange an appointment with us today and we can take it from there.

 

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