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Criminal Defence Articles

How to obtain a Non-Molestation Order

sexual assault

If you are suffering from abuse from someone in your home or someone close to you, you are probably feeling afraid and anxious. You may be wondering what your options are, and how you can escape an abusive relationship. It often takes people many attempts to successfully leave a relationship with their abuser. If this sounds like you, don’t lose heart. A non-molestation order (NMO) is one of several options that you can consider to help keep yourself and your children safe whilst you figure out your next steps.

This article looks at what non-molestation orders are and how you can obtain one. Whilst you do not require a lawyer to obtain a NMO, it can be helpful to get legal advice when drafting your application in order to ensure that you have included all the relevant information that court will need to see when making its initial decision. If the matter proceeds to a hearing where the respondent is present, a solicitor can also make sure that you are properly represented in court.

What is a non-molestation order?

An NMO is a form of protective injunction. An injunction is a type of court order that compels someone to do something, or prevents them from doing something. Under Section 42 of the Family Law Act 1996, the court has the power to grant a NMO to prevent one person from ‘molesting’ another. Whilst there is no definition of what molesting means, it is generally taken to include any abusive behaviour including verbal, emotional, psychological, physical and sexual abuse. It is also taken to include coercive and controlling behaviour.

If the order is granted, it prohibits the respondent from doing certain activities to the applicant. For example, it could prohibit the respondent from verbally abusing the applicant. It could also stop the respondent from coming within a certain distance of the applicant’s residence. The order can also offer protection to children within the applicant’s care, (for example, by preventing the respondent from attending their school). The provisions in the order that is granted will depend on the facts set out by the applicant in their application. This is why it is very important to include as many specifics as possible about your situation and the protection you need in your application.

If you live with someone and you want a court order preventing them from entering your shared home, you need to apply for an occupation order instead. An occupation order can exclude the respondent from entering the shared home, or a part of it. Occupation orders can be complex and it is worthwhile asking a specialist family law solicitor for advice.

Who can you get a non-molestation order against?

You cannot obtain an NMO against a casual acquaintance. An NMO can only be obtained against an ‘associated person’ to the applicant. The following relationships qualify:

  • married or formerly married
  • in a civil partnership, or previously in one
  • cohabiting, or previously cohabited
  • live, or previously lived, in the same household
  • relatives
  • individuals who have agreed to marry (even if you are no longer engaged)
  • parents or individuals sharing parental responsibility for the same child
  • individuals who have been in an intimate relationship of significant duration
  • individuals who are both party to the same family law court proceedings

If you are seeking legal protection against an individual and you are not sure if they qualify as an associated person, seek the advice of a specialist family lawyer.

What steps should you take to get a non-molestation order?

If you are thinking of applying for an NMO, the first thing that you should do is make a note of all the things that have happened that are causing you to apply for help from the court, and the date on which these matters occurred. You should set out the history of abuse from back when it started. Even with that information, though, the court will usually be looking for evidence of incidents that have occurred recently, which show that you are in need of the court to protect you now. Therefore, you should describe these recent events in more detail.

For example, you could write out the events that have occurred like this:

  • 1 September 2020: husband threatened to hit me
  • 5 April 2021: husband verbally abused me in front of my relatives
  • 25 December 2021: husband hit me whilst intoxicated and took my Christmas money
  • 1 January 2022: husband left for 3 days
  • 2 March 2022: husband threatened to hurt the children after a night out at a family meal that resulted in arguments. I made a police report: crime reference: XXXXX
  • 25 March 2022: husband beat me up and I left home with the children to stay at my sister’s house. The police are investigating the incident: crime reference: XXXXX

If you decide to instruct a solicitor to help you, they will go through these occurrences with you to help you prepare a written statement.

Alternatively, you can write the events out yourself as a statement. Make sure the statement includes your full name, date of birth, and address, and that it is signed and dated at the end. There is a template available here.

There is no court fee for making the application. If you are representing yourself without a lawyer, you will need to take the documents to the local family court in order to file them. Another option is that you can email them to the court, or send them in by post. Sending them by post will delay matters so email is probably a better option if your application is urgent.

How long does it take to get a non-molestation order?

The court can hear your application for an NMO without giving notice to the respondent. This is known as an ex parte application. This means that in urgent situations, you could walk away with a copy of your NMO on the same day that you applied for it. When deciding whether to hear the application without notice, the court will consider:

  • any risk of significant harm to you or a relevant child attributable to conduct of the respondent, if the order is not made immediately.
  • whether it is likely that you will be deterred or prevented from pursuing the application if an order is not made immediately. This could include if you are likely to be threatened or intimidated by the respondent if they are given notice of your application.
  • 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.

These factors are set out at Section 45 of the FLA. If the court grants the NMO on the day, it will usually only be a temporary or interim order. This will last until the matter is set down for a court date where evidence from both sides can be heard.

If the court decides not to hear your application without notice, it will give notice to the respondent. Both you and the respondent will have to attend a court date where the court hears from each of you before deciding whether to grant the application. At the court date, if an NMO is granted, it will usually last for 6 months or a year.

What is the difference between a non-molestation order, a domestic violence protection order, and a restraining order?

These three types of orders are all protective injunctions, but they are granted in different circumstances.

A restraining order is usually granted by the criminal court during or at the conclusion of a criminal prosecution. Usually, the prosecution will ask the court to grant a restraining order where a witness feels afraid or perceives that they are at risk.

By contrast, a non-molestation order is granted by the family court. It is down to the victim of the abuse to make the application for an NMO.

Meanwhile, a domestic violence protection notice is a document that can be issued by a police officer to protect a victim of domestic violence where violence is threatened or used. The notice will be served upon the perpetrator. The notice lasts for 48 hours and can be given without the consent of the victim. Within those 48 hours, the police officer can then apply to the Magistrates’ Court for a domestic violence protection order to be granted. The perpetrator will be given notice of the hearing. The victim is permitted to attend court, but they are not required to do so.

Where to get further help?

If you are looking for assistance with applying for a non-molestation order, Stuart Miller Solicitors can help. We will help you prepare your statement and support you through the application process. We will also attend court with you to help you file your application and will assist you in obtaining representation for the final hearing, if required. Once an NMO has been granted, we hope that you will feel safer and that you can begin looking ahead to the future. Contact us to make an appointment today.

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