When you are suffering from abuse or have been accused of abuse, it is common to feel overwhelmed, confused, and scared. At Marsans Gitlin Baker, we are here to assist you with compassion and legal guidance.

One common way to address abuse is via non-molestation orders. This guide answers frequently asked questions about non-molestation orders, and our family law solicitors are here to provide further support if needed.

What is a Non-Molestation Order?

A non-molestation is a court order that prohibits a person from molesting another associated person or relevant child. 

This order was created under the Family Law Act of 1996 with the purpose of protecting people and children from abuse and harassment. 

What is the difference between a Non-Molestation Order and a restraining order?

This is a very common question, and it frequently causes confusion. The biggest difference is that restraining orders are given in criminal courts. In contrast, non-molestation orders are given in civil and family courts and applied for by the victim. Additionally, a non-molestation order requires a certain relationship between a victim and perpetrator. 

Why do people seek Non-Molestation Orders?

Common reasons that people seek non-molestation orders are for protection from violence, threatening behaviour, harassment, stalking, financial abuse, controlling behaviour, or psychological or emotional abuse. 

What qualifies as molestation?

While there is no statutory definition of molestation, courts have wide discretion and have confirmed that “pestering” qualifies. 

Other examples of behaviours that can be considered molestation include vexatious communications, acts or threats of violence, and writing or shouting abusive language. 

Courts typically require objective evidence of recent and ongoing risk. In order to justify judicial intervention, the court require there be behaviour from the respondent. An applicant’s personal distress alone is not sufficient.

Who is an associated person?

The are eight classes of applicants who are considered to be associated persons. These include:

• Spouses or former spouses
• Civil partners or former civil partners
• People who have had an intimate personal relationship of significant length
• Co-habitants or former cohabitants (not including tenants, lodgers, or borders)
• Relatives (including parents and stepparents, children and step-children, grandparents, grandchildren, brothers, sisters, aunts, uncles, nieces, cousins)
• People who have agreed to marry each other
• People who are both party to the same family proceedings 
• If the order is in relation to a child, then the parent or person with parental responsibility may apply

How does the court decide whether to grant a Non-Molestation Order

The court adopts a three-stage test when considering whether to make a non-molestation order under s.42 FLA 1996:

1. Is there evidence of molestation?
2. Does the applicant need protection?
3. On the balance of probabilities, is a court order required to control the respondent’s behaviour?

What types of protection do Non-Molestation Orders offer?

A non-molestation order prohibits a person from taking certain actions. These commonly include contacting or going near the protected party, going to certain places such as the protected party’s home or school, and being violent towards a protected party. It also commonly includes orders not to harass, threaten, intimidate, abuse, or instruct someone else to do so on their behalf. Breaking this order has criminal consequences. 

How can I get a Non-Molestation Order?

The first step is to fill out an application form, supporting witness statement, and statement of truth. These should outline the details and circumstances of why a non-molestation order is necessary and appropriate.

 After the application is submitted, the court will schedule a hearing. Depending on the case, the judge will make a decision at that hearing or schedule a follow-up hearing where the judge will review the parties’ statement and hear from both parties. The judge will then determine whether or not granting the order is appropriate.

What types of evidence do courts consider regarding Non-Molestation Orders?

Courts have discretion to allow a wide range of evidence. This can include evidence of physical injury – like photos, hospital records, and GP notes. It can also include text messages, emails, other writings. Police reports, domestic helpline records, personal journals, and sabotaged or broken belongings are other evidence that may be considered. 

What can I do if filing the order would put me in danger?

You can make an application without notice. This on an emergency basis, and the court will only grant one if there is a clear and immediate risk of harm.

The procedure here involves submitting the application, witness statement, and declaration and explaining why an emergency order is necessary. A judge will review the application and has the power to grant an interim order. After the interim order is granted, the respondent is served. There will be a full hearing after where the respondent has the opportunity to share their side. After hearing both sides at this hearing, the judge will determine whether a final order is appropriate.

What if the person lives with me?

In that case, an occupation order may be appropriate. This order, if granted, can require another party to leave a property.  See our FAQ guide on occupation orders for more information.

How long does a Non-Molestation Order last?

Non-molestation orders are typically between six and twelve months. If necessary, an applicant can apply for renewal.

Can I challenge a Non-Molestation Order?

Yes, at the return hearing, the court will hear from both the applicant and the respondent before making a final decision. The court will also review evidence from both sides.