Mrs Justice Lieven DBE has sought to clarify and remind practitioners of the applicable law for Non-Molestation Order applications under the Family Law Act 1996, in the recent case of DS v AC  EWFC 46.
Applications of this nature are frequently made (including on an ex-parte basis), and substantially increased during the pandemic.
The Applicant, who was acting in person, applied for an ex-parte NMO on the 8th of November 2022.
The parties started a relationship in October 2021 and the relationship ended by WhatsApp on the 16th of September 2022. They met through a professional networking group and the applicant also worked part time in the respondent’s business at the end of their relationship.
The applicant’s statement specifically says that the respondent was not verbally (or physically) abusive or violent towards her. She felt he was controlling, including by buying her extravagant gifts and accusing her of not being grateful. She said he was increasingly demanding in terms of her answering his calls and being available. As the relationship went downhill the respondent texted her up to 30 times a day, and they had an argument about whether he flirted with a waitress. By September they were seeing each other less, although the applicant thought the respondent was manipulating her into drinking too much.
On 16 September the applicant ended the relationship by text, saying she would take formal steps should the respondent contact her again; she then blocked him. The respondent tried to call her a few times and on 18 September he sent an email, which Lieven J found to be rather sad; she did not agree with the applicant that it was threatening.
There was a financial dispute between the parties; the respondent took the applicant to the “small claims court” about money allegedly owed to him and the applicant counter-claimed in respect of wages due. On 3 November the respondent emailed the applicant to say that he had paid the wages. Although the email said that he was hurt and angry, the judge considered it “entirely appropriate”.
The applicant stated that she was applying ex parte because the respondent’s behaviour was unpredictable and that if he was on notice he might try to dissuade her from pursuing her application. A District Judge refused to make an ex parte order and listed a hearing on notice. The respondent attended the hearing but the applicant did not, so her application was dismissed.
The applicant emailed the court to explain her non-attendance and asked for her application to be reinstated. A directions hearing was listed before Lieven J to decide whether the application should be allowed to proceed.
Relevant legal framework
The Judge sets out the statutory test (S42 of the Family Law Act 1996) and the relatively sparse number of reported cases on the matter.
At paragraph 23, the following applicable key principles are confirmed:
On a without notice application the court must consider whether there is a risk of significant harm attributable to the Respondent if the order is not granted immediately, s.45(2)(a);
- And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b);
- A without notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party, R v R at ;
- The Court should use its powers under the FLA with caution, particularly at a one -sided hearing, or necessarily on a paper consideration without the other party having notice, R v R at ;
- “molestation” does not imply necessarily either violence or threats of violence, but can cover any degree of harassment that calls for the intervention of the court, Horner v Horner at 51G;
- The primary focus of the court should be upon the “harassment” or “alarm and distress” caused to those on the receiving end, Re T (A Child);
- There does not have to be a positive intent to molest, Re T at .
As Mrs Justice Lieven stressed at paragraph 24 of the judgment:
“It is important that these principles are applied properly, and orders are not simply granted by default. In particular, it is important for all concerned to note that a without notice application should only be made in exceptional circumstances where there is a risk of significant harm. 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. 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.”
Whilst it is imperative for applications of this nature to be granted where there is sufficient evidence of molestation and a significant risk of immediate harm, all applications and accompanying evidence requires scrutiny at an early stage.
In this case, there was no proper basis for an order to be made because there was no evidence that the conduct was sufficient to justify the intervention of the court. Orders are not to be granted where the evidence suggests that there is some upset at the end of a relationship.
Although there does not have to be a positive intent to molest, subjective distress alone is not enough to justify an order. In this case, the respondent had sent excessive texts and emails at the end of the relationship but he had stopped before the application was made.
The Judge therefore refused to reinstate the applicant’s application.
Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.
4th of May 2023