Defending a Non-Molestation Order
Being served with an order or application in respect of domestic abuse proceedings, particularly without notice can be very distressing especially when you do not accept the allegations made against you.
Responding to the application
When responding to an application/order it is important to allow yourself time to process the application and evidence available i.e., the applicant’s statement. This is because you are likely to have highly charged emotions and may wish to respond in retaliation without being aware of all options available to you.
In situations where you have been served with an Order that was granted without notice, you will usually be served with a notice of hearing alongside the order. The hearing will normally be listed shortly after you receive the order so seeking legal advice beforehand is advisable. The Family and Relationships team at Glazer Delmar are available to help and assist you through the process.
What are my options?
Not Challenging the Order
Although this is a seemingly unusual course of action for a respondent who does not agree with an order being made against them, *accepting a non-molestation order without the admission of guilt or finding of fact can be the most expedient and cost-effective way to conclude proceedings. In essence, this removes the need for a trial to be listed and results in the order continuing for the duration stipulated unless extended by the Judge.
Generally, people who find themselves in circumstances where they already have very little interaction with the applicant may opt for this but in any event, it is always prudent to seek legal advice before making any definitive decisions as non-molestation orders can have longer lasting effects sometimes beyond the duration of the order itself.
The Family and Relationships Department at Glazer Delmar can offer you tailored advice.
Challenging the Order as you believe the allegations are false
When you receive the non-molestation order you will normally receive a hearing notice which will inform you of the date for the hearing and include directions about what to prepare for the hearing. One of the directions will normally be to draft a statement in response to the allegations and also to confirm your position. The judge will consider all the evidence before them before deciding on the outcome of the application.
There are generally three potential outcomes:
The Judge maintains that the order should remain in force or grant the order if the hearing is with notice.
The Judge will dismiss the application if based on the facts of the case there is insufficient evidence to warrant the need for an order in favour of the applicant
The Judge will list the mater for a further directions hearing or Pre-Trial Review hearing in preparation for defending the matter at trial and give directions on the next steps.
The Judge can also adjourn a hearing to enable parties to gather more evidence. If an order was made without notice in the first instance, it is likely that it will continue for the interim period until the judge makes any further orders.
Offer an Undertaking
An undertaking is a promise to the court not to behave in a particular way towards the other party within the proceedings. The main difference is that an undertaking has to be accepted by the court and does not carry the power of arrest in the same way that a non-molestation order does by default.
This also means that a breach of an undertaking is classified as contempt of court which is enforceable through an application to the court if there has been a breach.
Providing an undertaking does not mean an admission of guilt or finding of fact. But is another option which can provide a resolution without the need for a trial.
Q: I want to contest a without notice non-molestation order made against me, can I still my children in the meantime?
A: Having a non-molestation does not automatically mean that you cannot see your children but facilitating contact will become increasingly difficult especially if your children primarily live with the applicant. This places you at a greater risk of breaching the order. Where the parties in non-molestation order proceedings have children, the court will aim to take contact arrangements into account to ensure that contact does not become strained, provided that it is safe to do so for the children.
Q: I do not agree with the order being made against me; do I need to comply with the order?
A: Yes, it is mandatory for you to comply with the order as a breach of a non-molestation order will result in arrest. This is irrespective of whether you are contesting the order.