An individual in England and Wales can seek to bring a non-molestation order against an associated perpetrator to prohibit behaviour including persistent threats of violence, harassment, abuse, or other unwanted behaviour. The Family Court has received a greater volume of applications since the Covid-19 pandemic in 2020.

Associate Felicia Munde considers the decision of Mrs Justice Lieven in DS v AC [2023] EWFC 46, a case involving an application for a non-molestation order. The decision provides useful judicial guidance on applications without notice under the Family Law Act 1996.

Background

The applicant and respondent were in a relationship from October 2021 until September 2022. The relationship became problematic shortly after it began. The applicant said the respondent had not been verbally or physically abusive, but she felt he was controlling towards her, frequently phoning and monitoring where she was. The applicant also said the respondent controlled her by buying her extravagant presents and then accusing her of being ungrateful.

The relationship continued to deteriorate, with the respondent texting the applicant around 20 to 30 times a day. The applicant said she became suspicious and fearful of the respondent. In September 2022, the applicant began working at the respondent’s business part-time for financial reasons, and the respondent became increasingly demanding.

The applicant ended the relationship ended by WhatsApp on 16 September 2022. In her WhatsApp message, the applicant said she would take formal steps if the respondent contacted her again and blocked him. The respondent subsequently called and emailed the applicant despite her requests for him not to. In one email, he purported to threaten her career.

Subsequently, there was a minor financial dispute in the context of the business relationship. Emails were exchanged, with the respondent claiming money for a phone contract and the applicant counterclaiming for unpaid wages (which were eventually paid). The applicant contacted the police, who advised her to seek a non-molestation order.

The applicant, acting as a litigant in person, applied for a without notice (ex parte) non-molestation order on 8 November 2022. She alleged the respondent’s behaviour was unpredictable and that he might try to dissuade her from seeking an order if he was informed about it. The matter came before District Judge Dickinson on 8 December 2022.

District Judge Dickinson refused to make an order and listed a hearing on notice to the respondent to take place on 16 December 2022. The respondent attended this hearing, but the applicant did not. Her application was therefore dismissed.

The applicant subsequently emailed the court explaining her non-attendance and asked for her application to be reinstated. District Judge Dickinson listed a directions hearing before Mrs Justice Lieven on 14 March 2023 to consider whether the application should be allowed to proceed.

Outcome of the directions hearing

Mrs Justice Lieven agreed with District Judge Dickinson that upon reviewing the evidence, there had been no reason for making an order without notice. Moreover, Mrs Justice Lieven Lieven felt there was no basis for a non-molestation order being made at all, noting that there had been no contact made by the respondent in the three weeks preceding the application.

Mrs Justice Lieven accepted that while the respondent had sent an excessive number of texts and emails at the end of the relationship, there was no basis for the court to intervene. She therefore refused to reinstate the application.

In her judgment, Mrs Justice Lieven said: “The respondent probably sent the applicant an excessive number of texts and emails at the end of the relationship and at least one of them was angry and hurt. However, by the time the application was made that conduct had ceased. There was in my view no proper basis for the intervention of the court.”

Mrs Justice Lieven also observed that “the conduct has to be sufficient to justify the intervention of the court. Orders should not be granted where the evidence suggests that there is some upset at the end of a relationship, and little or nothing to suggest the conduct complained of would amount to ‘molestation’.”

The judgement in this matter helpfully sets out the relevant principles extracted from the Family Law Act 1996 and the case law to be considered when a without notice non-molestation order application is made. The judgement reiterates that without notice applications should only be made in exceptional circumstances where there is a risk of significant harm attributable to the respondent if the order is not granted immediately and that proper consideration must be given for the rights of the absent party. If made, the application must expressly deal with why the case is exceptional and what the significant risk alleged is.

Conclusion

As a result of the Covid-19 pandemic, the court has seen a significant growth in the number of applications for non-molestation orders under the Family Law Act 1996. In many parts of England and Wales, that increased number has not fallen back to pre-pandemic levels.

Partner Adrian Clossick comments: “While this judgement is not ground-breaking insofar as it does not address a novel point of law, it serves as a timely and useful reminder of the type of behaviour that may be considered sufficient to justify the intervention of the court in without notice non-molestations applications. More particularly, this case highlights the importance of obtaining legal advice, wherever possible, before applying to court.”