Getting without-notice non-molestation applications back on track

District judges throughout the
country are aware
of the difficulties being met
by solicitors following the changes made to public funding as a result of the Legal Aid Sentencing and Punishment
of Offenders Act 2012.

It is understood that, in
some cases, a non-molestation injunction has to be applied
for and granted before an application for public funding
for a Children Act order can
be submitted.

However, some solicitors seem to have forgotten what
is required.

Rambling statement

Non-molestation orders are not new, the present jurisdiction is set out in part IV, section 45 of the Family Law Act 1996 and the Family Procedure Rules 2010, rule 10.2(1).

District judges do not need
to read a 12-page rambling statement, containing a blow-by-blow account, often not in a chronological order, of the relationship breakdown.

All we need is a statement setting out a short resume of the history of behaviour and then a limited number of paragraphs setting out pursuant to section 45(2):
any risk of significant harm to the applicant or relevant child attributable to the conduct of the respondent if the order is not made immediately; and, whether it is likely that the applicant will be deferred or prevented from pursuing the application if an order is not made immediately.

When solicitors are drafting their clients’ statements, they should ensure that they set out in the body the facts of and
the date and place of the last incident relied on and, if it is some time before the hearing, an explanation of what has happened in the interim.

If the applicant is relying
on Facebook or text entries, as many do, they should not just refer to them in a generalised comment, they should refer
to them by date and exhibit
a screen shot of the entry or entries, if at all possible. This
will help the judge determine whether the application satisfies the law referred
to above.

Telling the judge that their client has the texts or Facebook entries on their phone is not the correct way for all the evidence to be considered at the first without-notice hearing.

Exceptional case

Unfortunately, some solicitors are drafting statements that just say: “I have received up to 50 texts.” But they don’t say when, or set out the content. All the judge knows is the number involved. In one case I recently heard, the texts just said how much one party loved and missed the other. It may be harassment but that is all it was.

If the application and supporting statement does
not persuade a court to make
a without-notice order, it is perfectly permissible for the applicant’s solicitor to ask for the time for service to be abridged (many judges do this) and, subject to service, there is no reason why it should not be as little as three hours to enable a hearing to take place later in the day or the next morning

The court, when hearing
both an application for a non-molestation order and an application for an occupation order, is unlikely to grant a without-notice occupation order (see Maisch v Maisch [1977] Fam Law 245), which will only be granted in exceptional cases.

Even though the court
may not feel able to grant a without-notice occupation order, it will often grant the without-notice non-molestation order element of the application, pending the hearing of the application for an occupation order on short notice to
the respondent. SJ

PRACTICE POINTS Be clear and precise and show that the court has jurisdiction to hear the application by setting out how the parties are associated. Contain a simple chronology. Set out the most serious and the most recent incidents giving full details including place and dates, whether there were any injuries, whether medical help was obtained, whether the police were called, whether there was an independent witness and whether relevant children or others were present. Address the statutory test in section 45 of the Family Law Act 1996.

 

District Judge Nigel Law sits at Blackpool County Court