Defending a Non-Molestation Order Application:

Non Molestation Order

What to do when you have been served with a Non-Molestation Application made against you?

 

  • When a person is served with a notice of an injunction application for a Non-Molestation Order, he or she may find it a very stressful event that would raise anxiety and impact his/her mental health.

  • Amongst other issues, the critical question that arises is: What does the person do to defend himself/herself?

  • This question becomes more complex when children are involved as well as when there is a long history between the connected persons. The Non Molestation order application can be worse where financials and occupation issues are still under progress of resolution at the same time.

 

 

If the allegations in the Non-Molestation application are true:

 

  • Decide for yourself if the Non-Molestation application is based on facts? You are the best judge to know whether the allegations made against you are true or not. If the allegations are real and accurate and can be proven, then you may consider ensuring that you do not repeat the alleged conduct. You may consider accepting the order being made, or you may consider giving an Undertaking. Both these options are explored in detail below. You may still choose to fight the application, but you should consider all relevant facts and evidence available to the Court and the entailing possibility of an Order being made against you in light of this evidence.

If the allegations are FALSE:

Is the Injunction Order Application being used as a Leverage?

  • If the allegations are not true, then you may choose to fight these allegations in the Court.

  • It must be noted that fighting a Non-Molestation Application is an involved process

  • It is possible (not certain) that in a return hearing an interim order may be made against you until further or final hearing order(s).

  • An interim order does not necessarily mean that you are guilty. An interim order only means that the Court decided that there is a need to protect the applicant till the facts are found, and a final judgement is delivered.

Unfounded application for Non-Molestation to gain leverage?

 

If it seems that the injunction Non-Molestation order application is being made to get leverage over you for any reason you should bring these facts and evidence in front of the Court. It has been known that sometimes Non-Molestation order applications are made to get leverage in financial proceedings or children arrangement or/and child contact reasons or out of pre animosity/jealousy or all these.

 

If the Non-Molestation order application is being used to gain leverage rather then the required protection, then you may make this point in your arguments and your statements to the Court.

 

Courts do not like the use of Injunction orders applications in a frivolous fashion. If the Court is convinced that the application by your ex / associated person is not genuine for the need of protection, then the Judge may take serious note of the same.

 

Difficult Decision Point: Will you defend your position against the Non-Molestation (and if applicable then the Occupation Order Application) or not?

 

You will need to make a difficult decision

 

  1. If you wish to oppose the making of such orders, then a detailed defence statement with evidence (s) may be required.  

    1. You may need to present facts and grounds relied upon in the opposition of the application

    2. You may also need to provide the full background of the relationship between you and your ex/ connected person.

    3. In every point of defence, you need to be diligent, detailed and careful as the opposite party may have counter-evidence. The best approach may be to stick to the truth and the evidence that proves your truth.

    4. These matters often come down to the evidence from the applicant and respondent (you) thus proper care should be taken to identify relevant evidence, if possible, any other witnesses who could give relevant evidence if the matter remains contested.

    5. You may elect to contest or not contest all or a particular claim and should set out any orders that you as the respondent will seek.

 

  • The matter may be set for a return hearing with the applicant to present their case first. Once the applicant has set out their evidence, then you as the respondent (or your Solicitor / Barrister) should go about rebutting each part of the applicant’s evidence.

  • The magistrate / Judge will consider both parties’ evidence and decide on the orders sought by the applicant.

  • Should the injunction be granted against you, you should be aware of the requirements of the injunction and the consequences of breaching it.

  • The Court may make an order that you stop your behaviour/conduct/actions/inaction/ a particular direction as the court mat deem fit.

  • A breach of the order of the Court is a criminal offence with a maximum sentence of five years in prison.

 

Undertakings in Non-Molestation matters

 

  • As the respondent to an application, you may wish to avoid a court hearing and undertake to comply with the conditions proposed by the applicant or the Court in the application

  • Please do note that if a person makes an undertaking, they do not admit the past alleged behaviour. They undertake not to violate the proposed orders sought by the applicant or the undertaking as the Judge may deem fit in the matter based on the relevant facts on front of the Court.

  • The Court may not accept undertakings where the Court is convinced that there has been violence or a threat of violence, or applications where the Court deems that is necessary and proposes to attach a power of arrest to the order.

  • Undertakings are enforceable as if they were a court order.

  •  You need to understand that in consenting to the undertakings being made, you do not agree with any of the allegations set out in the application.

  • It is equally essential for you to note that the effect of the undertakings is just the same as final orders imposed by the Court.

  • It is preferable for all parties that undertakings be negotiated and agreed upon, thereby avoiding the financial and emotional cost of attending Court on a future date.

  • Nothing in this article/page should be treated as Legal advice.

  • This article is authored by am experienced Paralegal and not by a solicitor. The Author of the article is, as on date, a Fellow Member and a Licensed Paralegal as certified by the National Association of Licensed Paralegals.

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