Breaching a non-molestation order is a criminal offence under Section 42A of the Family Law Act 1996 and carries a maximum sentence of five years’ imprisonment. If a breach is alleged, it is important to establish how the order was served and when the respondent became aware of its restrictions. 

In many cases, a respondent may first learn about a non-molestation order through a process server, court bailiff, solicitor, family member or contact from the police. Although the police do not usually serve non-molestation orders themselves. Their role is normally enforcement rather than formal service.

However, the police may be notified once an order has been made, and they may become involved if there is an allegation that the order has been breached. This guide from the non-molestation order solicitors at Tyler Hoffman explains how non-molestation orders are served, what role the police may play, and the steps to take if you are accused of breaching one.

What is a non-molestation order?

A non-molestation order is a type of Family Court injunction made under the Family Law Act 1996. It is designed to provide protection from molestation, such as harassment, intimidation, threatening behaviour, violence or unwanted contact.

The order can protect an applicant and, where relevant, any children. It is usually made against a respondent who is an “associated person”, such as a former spouse, civil partner or cohabitant, under the Family Law Act 1996.

The exact restrictions of the order will depend on the wording approved by the judge, and may prevent a person from:

• Contacting the applicant directly or indirectly
• Going to or near the applicant’s home
• Attending a workplace, school or other named location
• Threatening violence
• Harassing, intimidating or pestering the applicant
• Encouraging another person to make contact on their behalf
• Behaving in a way that affects the applicant’s safety, well being or protection

These restrictions are different from the terms of an occupation order. A non-molestation order deals with conduct, contact and behaviour towards the applicant. An occupation order deals with who can live in, return to or be excluded from a home. In some cases, both types of order may be considered, but they serve different legal purposes.

How is a non-molestation order delivered?

A non-molestation order is usually delivered by personal service. This means the respondent is handed the order and relevant court documents directly so there is clear evidence that they have received them.

Service may be carried out by:

• A court bailiff
• A private process server
• A solicitor’s agent
• Another person authorised or permitted to serve the documents

The court documents may include:

• The non-molestation order
• The non-molestation application
• The applicant’s witness statement
• Any supporting evidence
• Notice of the next court hearing
• Details of a return hearing or final hearing
• Any directions made by the judge

After service, proof of service will be filed with the court. This is usually done using a statement of service, which explains who was served, when service took place, where it happened and what documents were delivered.

For anyone that has been served such a notice, these details are important. Because any breach allegation later made will depend on whether the respondent knew about the order and understood its terms. If there is a dispute about service, the court and police may look closely at the statement of service and all the circumstances.

Can a non-molestation order be made without notice?

A non-molestation order can be made without notice. This is sometimes described as an ex parte application, although “without notice” is the more common modern term.

A without notice application means the respondent is not told about the application before the first hearing. This may happen where the applicant says there is immediate danger, a risk of harm, or a concern that telling the respondent in advance would undermine the protection being sought.

Applications for a non-molestation order or occupation order must be supported by a witness statement. If the application is made without notice, the witness statement must explain why notice has not been given.

If an order is granted without notice, the respondent may first find out about it when they are personally served. The order will already be in force by that point.

The court will usually list a return date or second hearing. This gives the respondent an opportunity to attend court, respond to the allegations and ask the judge to consider further evidence. Depending on the court’s directions, the respondent may need permission to file a statement or other evidence before the hearing.

At this stage, you should seek legal advice. The specialists at Tyler Hoffman can review the order, explain can and cannot be done, prepare evidence and respond to the allegations and represent the respondent at the hearing. We can also investigate whether there are grounds to ask the court to vary, discharge or narrow the order.

What should you do after being served?

Once served, the respondent should read the order carefully and check exactly what it says. The terms of the order will be specific to your case. A breach allegation will usually rest on this specific wording, not on a general understanding of what non-molestation orders usually include.

Important points to check include:

• Whether direct or indirect contact is prohibited
• If contact through a family member or friend is prohibited
• whether social media contact is restricted
• If exclusion zones around a home, school or workplace
• Does the order include any children
• Is there an expiry date on the order?
• When the next hearing date is listed
• Has the court has given directions for further evidence

If the respondent disagrees with the allegations, that does not mean the order can be disregarded. The correct route is to secure legal representation and respond through the court process, attend the hearing if required, and avoid taking any steps that could be treated as contact or harassment.

You should also keep relevant evidence. This could include messages, call logs, location evidence, emails, photographs, social media records or anything else that may assist in dealing with the application or any alleged breach - your solicitor will be able to use these to present a case on your behalf.

What are the penalties for breaching a non-molestation order?

Breach of a non-molestation order is a serious criminal offence. If the case is dealt with in the Crown Court, the maximum sentence is five years’ imprisonment. A breach can also lead to a fine, bail conditions, a criminal record and further restrictions that could affect your ability to travel to some countries.

The likely outcome will depend on both the seriousness of the alleged breach and the strength of the evidence. The court may consider factors including:

• What the order prohibited
• If the alleged breach involved violence or threats
• There was repeated contact
• Whether the applicant or any children were caused fear or distress
• Any previous breaches
• The respondent was already subject to bail conditions
• The evidence suggests deliberate disregard for the court order
• There is mitigation that can properly be advanced

Even brief contact can have serious consequences if it breaches the order. A single message, call or visit may be enough to trigger arrest and prosecution where the order prohibits that behaviour. However, the prosecution still has to prove its case. That may include proving that the order was in force, that the respondent was aware of it, and that the alleged conduct breached the precise wording of the order.

This is where early legal advice can make a significant difference. A defence solicitor can examine service, awareness, the terms of the order, digital evidence, witness evidence and the context in which the alleged breach took place. Where the evidence is incomplete, unclear or inconsistent, those issues may be capable of being challenged before charge, during proceedings or in mitigation at sentence.

Can you challenge a non-molestation order?

A respondent may be able to challenge, vary or respond to a non-molestation order through the Family Court. The available route will depend on how the order was made, what hearing dates have been listed and any directions the judge has given.

If the order was made without notice, the return hearing may be the respondent’s first opportunity to put forward their position. The respondent may be able to file a witness statement, provide further evidence and ask the court to reconsider the order.

The court can decide whether to:

• Continue the order
• Vary the terms
• Discharge the order
• Make a different order
• List the case for a final hearing
• Give directions for further evidence

Family Court proceedings and criminal proceedings can overlap. For example, the Family Court may be dealing with the non-molestation application while police are investigating an alleged breach. In those circumstances, it is important that any response in one process does not create unnecessary risk in the other.