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Judge warns of ‘very strict criteria’ for non-molestation orders

By John Hyde >>

(3 April 2023)

AHigh Court judge has issued a warning to practitioners to stop making applications for non-molestation orders when there is no basis for them.

In DS v AC Mrs Justice Lieven DBE noted the ‘significant growth’ in the number of applications under the Family Law Act during the pandemic, saying this number had yet to fall back to pre-2020 levels.

The judge said a large proportion of the applications are made without notice and it was useful to remind lawyers of the ‘very strict criteria’ for the making of such orders.

‘If a without notice application is made, then the statement in support must expressly deal with why the case is exceptional and what the significant risk alleged is,’ she said. ‘There can be no doubt that far too many such applications are made where there is no reasonable basis to grant the application without notice.’

A non-molestation order is a form of injunction which protects people from violence or harassment and can be obtained against someone who has been physically violent or has harassed, intimidated or pestered the victim.

In the present case, which was an appeal against a district judge’s decision not to grant an order, the court heard that the applicant and respondent had been in a relationship for almost a year until September 2022.

The applicant felt the respondent was controlling towards her, frequently phoning to ask where she was and buying her extravagant presents then accusing her of being ungrateful. The respondent texted her 20-30 times a day and she blocked his phone after ending their relationship, although he tried to ring her on a few more occasions. He emailed her after this, but the judge said there was nothing in the contents that was controlling or threatening.

The judge said there was ‘no proper basis’ for any order to be made and by the time of the application the excessive texts and emails had stopped.

‘The law is clear that there does not have to be a positive intent to molest,’ she added. ‘However, that does not mean that the test is a wholly subjective one whereby the applicant simply has to feel distress. Such subjective distress does not alone justify the making of an order. The conduct has to be of a nature or degree that justifies the intervention of the court.’

(Courtesy: The Law Society Gazette)