August Family Law – Case Update 3

DS v AC [2023] EWFC 46

Mrs Justice Lieven DBE sets out useful guidance about the basic principles which apply to applications for non-molestations and provides a reminder of the very strict criteria for the making of such orders without notice.

The applicant (DS) and the respondent (AC) were involved in a relationship that started in October 2021 and ended through a WhatsApp message on September 16, 2022. While DS stated that AC was not verbally or physically abusive, she described him as controlling. AC would buy her extravagant gifts and then accuse her of ingratitude. DS became aware of complaints about AC’s behaviour towards women in their networking group, which made her more suspicious and fearful of him.

The relationship deteriorated further, with AC sending DS 20-30 text messages per day. An argument occurred in August 2022 when they went away together, involving a dispute over AC’s alleged flirting with a waitress. In September, DS started working part-time in AC’s business due to financial need, which she believed increased AC’s demands on her. On 16 September, DS ended the relationship via text and blocked AC after threatening formal action if he contacted her.

AC continued to contact DS through phone calls and emails, including an email where he allegedly threatened her career if she disclosed his behaviour. A financial dispute arose within their business relationship, with AC emailing DS about her phone contract. DS reported AC’s behaviour to the police, who advised her to apply for a Non-Molestation Order.

On 14 October, AC sent DS an email threatening to take her to the Small Claims Court over money owed. DS received a letter from the Small Claims Court regarding AC’s claim, and she counterclaimed for wages owed. An email from AC on 3 November indicated that he had paid the wages invoice and explained that his behaviour was influenced by personal difficulties. The judge found that this was not a threatening email.

On 8 November, DS made a without-notice application for a Non-Molestation Order, citing AC’s unpredictable behaviour as the reason for applying ex parte. The application was initially dismissed, following DS’s failure to attend an on-notice hearing on 16 December but a Directions Hearing was scheduled for 14 March 2023, to reconsider reinstating the application. During the hearing, DS argued that the application should be reinstated, and an order made, while AC’s representative contended that there was no basis to grant the order, and the statutory tests under section 42 of the Family Law Act (FLA) were not met.

Lieven J sets out s.42 FLA and explains the court’s power to grant a Non-Molestation Order, she also sets out the power under s.45 to make an order on a without notice basis. She notes that there have been few reported cases on the correct approach to granting a Non-Molestation Order in recent years and that there is no statutory definition of “molestation”. She considers various cases and sets out the following principles which can be distilled from the FLA and the case law:

  1. 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).
  2. And whether the Applicant would be deterred or prevented from making the application if the order is not made immediately; s.45(2)(b).
  3. A without-notice order should only be made in exceptional circumstances and with proper consideration for the rights of the absent party.
  4. 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.
  5. “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.
  6. The primary focus of the court should be upon the “harassment”, or “alarm and distress” caused to those on the receiving end.
  7. There does not have to be a positive intent to molest.

Without notice orders, applications should be limited to exceptional cases 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 is.

In this case, there was no basis for making a without-notice order. There had been no contact from the Respondent for at least 3 weeks before the application was made. In addition, there was no proper basis for any order to be made. 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, in this case, there was little or nothing to suggest the conduct complained of was “molestation”. There does not have to be a positive intent to molest. However, that does not mean the test is wholly subjective. The conduct has to be of a nature or degree that justifies the intervention of the court – in this case an excessive number of texts and emails at the end of a relationship was not sufficient to justify the intervention of the court. The judge, therefore, refused to reinstate the application.

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