Can I contest a non-molestation order?

Put simply, under the Family Law Act 1996, a non-molestation order prevents someone connected to an applicant from having any contact with them. They protect an individual from forms of harassment, threats, or violence, either directly or indirectly, via a third party. These types of orders are typically used in cases of domestic abuse where there has been a persistent course of abusive behaviour.

Non-molestation orders can be made for a specific period or until further order giving it an indefinite element, although 12 months is commonplace.

Following an application, the court lists the matter for a full hearing within 14 days of the interim order being made. During this time, you will get the chance to respond and challenge the order; this is known as “contesting”.

What are my options for contesting a non-molestation order?

If you are facing a non-molestation order, it is sensible to obtain specialist legal advice, particularly if you intend to contest it. Your legal representative will be best placed to advise you on what to do next and how to dispute the order.

There are two options available to deal with a non-molestation order. You can:

• Provide an undertaking (promise to the court) – this will set out how you intend to behave in the future, and generally contains the same wording as the interim non-molestation order. For example, you may have to agree not to have any contact with your ex for a specific period (usually about 6 months). If you give an undertaking, it will not be considered an admission of guilt or wrongdoing, but simply avoids the stress and cost of a full hearing with your ex, where you both have to discuss allegations of domestic abuse.
• Defend the case and ask the court to determine the allegations are false – your solicitor will take your version of events and draft a statement setting out the evidence. This can include text messages, emails, bank statements, GP records, or anything else that supports your side of the story. You will need to attend court where the judge considers your statement and ultimately makes a decision. If you are successful, the non-molestation order will be discharged. But if you are unsuccessful, any other legal proceedings regarding your children or finances could be negatively affected.

After the judge has heard all the evidence, they will make one of the following decisions:

• Issue an order or uphold the interim order either in its original terms or vary it accordingly
• Dismiss the application or discharge the order
• Require the respondent to enter into an undertaking
• Adjourn the hearing to enable the applicant to gather further information (in this instance, the judge will probably make a further interim order until the next hearing).

Do I still have to comply with the terms of a non-molestation order if I’m contesting it?

While the order remains in place, you will need to stick to its terms and conditions even if you are disputing the allegations and contesting the order. Failing to adhere to it may have negative consequences, first reflecting badly when your case returns to court, and second, because breaching a non-molestation order could result in your arrest.

Can I still see my children if there is a non-molestation order in place?

The presence of a non-molestation order does not automatically mean you are prevented from seeing your children, although the nature of such an order often makes contact arrangements more difficult to manage. If you are not permitted to approach your ex and the children live with them, picking up or dropping off can become extremely challenging. These are all issues the court will take into consideration, and if necessary, put safeguards in place to prevent you accidentally breaching the order.