Non Molestation Order Help Please

[nobodylikesschoolmilk]

Please can someone offer some advice...

My partner's ex girlfriend came to our home last week when I wasn't home, she waited outside for me to arrive and was then verbally abusive to me and followed me onto our property. She was arrested and is currently on bail pending Police deciding whether to charge her or not.

This isn't the first incident, there have been a number of incident over the last two years and many have resulted in Police attendance but no convictions. She is rude, abusive and swears whenever I see her in public.

My partner and her are currently in the middle of family court proceedings regarding residency of their daughter. His ex girlfriend has previously made an undertaking to court not to come to our home due to previous incidents, shouting abuse through the door, getting family member to threaten to break in etc- this is the 3rd time this has been breached.

After last week's incident, which the children overheard and which left us all rather shaken and upset as it was a total surprise, he made an application for a non molestation order to stop her attending our home address and to protect us and the children from being subjected to her abusive language.

The application was passed to the Judge who is dealing with the family court proceedings. She listed a hearing within 48 hours to discuss the Non Molestation order application. At that hearing the ex girlfriend admitting attending our address but not being abusive. The Judge absolutely tore into her for breaching the undertaking and said she was making an order to stop her coming here again.

Given the application he made was for a non molestation order (FL401) and that the hearing was to hear that application and given the judge said she was making an order he presumed it was for a non molestation order. It's come through today and it is just a standard family court order. It orders his ex girlfriend to file (but not serve) a witness statement about the incident within 14 days and that she must not attend our home address until further notice.

She just doesn't care about breaching family Court Orders, we needed a non molestation order as it carries power of arrest - to deter her from coming here. I have no doubt that she will come here again, perhaps bring family members as she often does, I can call Police but I wanted her to have a deterrent to stop the stress and upset this causes us and the children.

Can anyone shed some light on what's happened? Do we write to the Judge explaining this or is this standard practice when applying for non-mol orders whilst family court proceedings are ongoing? There is no next family Court hearing date set as yet so it's not as if she intends it to be discussed then.

Thank you.

It sounds to me like a non-mol order. It says she should not attend your home. What is the precise wording? Does it contain a warning that breaching the order is a criminal offence?

You may well fond that there are 2 orders. One (that you're referring to) was made under the Children Act. There will be a separate Family Law Act order (under a different case number). Get him to check with his solicitor.

Thank you for your response.

The order is very short. The exact wording is as follows:

"Upon hearing X in person and Y in person

The Court Orders that:

The respondent shall not attend the applicants home until further order or conclusion of the children's act proceedings

The respondent shall file a statement of fact by X date.

The applicant shall obtain, file and serve a copy of the crime report for the incident dated X by X date.

Ordered by DJ X on X date."

I've had a look at example non molestation orders online and they all state "non molestation order" and have warning notices attached. This has neither. Nothing else is written on the order.

This order has it's own case number, different to the case number for the ongoing residency proceedings that's on all the family/residency court orders. So am I to assume this is the order the Judge made in response to the non molestation order application?

I will call the Court tomorrow and see if they can let me know if there was any other order made but I'm not hopeful. Or could it be that the Judge wants to see the crime report/ see if she's charged and read her statement first? I dodnt think there needed to be a charge or even an actual crime for a non molestation order.

Should he write to the Judge? He's wary of coming across as difficult given there's a final hearing regarding residency to be had at some point.

Sorry I forgot to say the Order says:

"Family law Act 1996" and the other residency proceedings orders all state "Children's Act"

So does this mean this is a non molestation order even without the warnings and notices one would carry?

It sounds like the judge intended to make a non-mol order, but it seems to lack all the bells and whistles that you'd normally expect. It should be more precise - state the address, or street from which she's excluded, and give a date until which she's bound by it (how do you define the end of the Children Act proceedings? What if there's an appeal?)

It all sounds unsatisfactory.

Thanks again.

We feel its unsatisfactory too.

What do you suggest? Should he write a letter to the Judge and if so do you have any advice of how He could handle that so that he does not appear to be telling her what to do?

Or should he go into the Court office and query this as a possible admin error from the people typing up the Courr Orders and hopefuly they will consult the Judge to check if it should have been a non mil order and he can get my answer that way?

It was a very short hearing- less than 10 mins. He's absokutely certian the Judge said "I am making an order" and then dismissed them both. He of course assumed it to be a Non Mol order given that was his application and she did not mention it wouldn't be. Is it commonplace to make this type of order in response to a non mol application?

Worth speaking to the court staff first. Ask them if the order should have been drawn up using the standard template and ask that the order recite the actual address and define the CA proceedings by reference to a case number. It could also clarify that the order ends "on conclusion of the Children Act proceedings by the making of a final order at first instance".

They should then refer the matter to the judge.You may get it sorted out that way, or there may need to be a short hearing.

Normally what happens is that the judge will say words similar to what is in your order, and the order then will be drawn up by the legal reps in a clear way that makes sense and is enforceable. That is the case even with non-mol orders, that are standard forms where the judge usually fills in the blanks. I take it both parties are unrepresented?

Great, thanks. I will get him to put it in writing and go down to speak to the Court staff tomorrow.

Yes both parties unrepresented. She usually has a Barrister for all family Court hearings but she turned up alone. My partner represents himself in all the hearings as we cannot afford a Barrister at this time.

Fingers crossed we get it resolved tomorrow.

Let me know how you get on.

My partner went to the Court today and spoke to a manager in the Court office. They checked and said the order was written as the Judge had ordered. He assured my partner this was a non molestation order of sorts just not the kind that has all the bells and whistles such as a warning that to breach this order is a criminal offence.

I know that non mol orders no longer need to specifically state they carry a power of arrest but surely it at least needs to state a warning of some kind.

Without incentive to not attend we know that she'll be back again at some point and we feel rather let down by the Judge.

I think you should write in to the court specifically asking that the file be put before the same judge, with your letter, and say that the judge surely will have intended that the order be enforceable and therefore it should be in the standard form.

Thank you, that's what I thought you may say. We shall be taking the letter in tomorrow and asking for it to be put in front of the Judge for her consideration. He is a little concerned as we have her for family Court hearings and he is wary of getting on the wrong side of her. Also it's hard to say to a Judge that we know the Court order is unenforceable and doesn't really mean much or give us much protection without the warnings on it.

A non molestation order IS a family law order. The law is taken from the Family Law Act 1996. It carries an automatic power of arrest, and she should have been warned verbally in court that breaches would result in arrest.

If there are other ongoing Children Act proceedings then that is probably why it has been listed to last until they conclude. The respondent (the ex girlfriend) has a right to respond, hence the direction to file a statement.

By the sounds of it, the order granted is likely to be an interim one until she has either accepted or contested what you have said.

Thanks gradually...

So are you saying that even though the Court Order doesn't state "Non Molestation Order" or mention "power of arrest" or a warning that breaching it is an offence/ arrestable offence etc that if she attends our home against the order and we call Police they will arrest her for breaching it?

She attended the hearing and contested what my partner's application said. Well, she admitted coming here but stated she had a good reason as she thought the kids were missing (ridiculous of course- they live here with us and she cokdnt expand further or explain why they might be missing on a normal day with us (they were at home in bed).

She's been asked to provide a statement and was told that this all looks rather bad for her application for equal shared residency.

The problem you have is that as it hasn't been drawn up in the standard form there are likely to be problems with enforcement.