[Solved] Served Ex Parte Non Molestation Order..

I'm sure I remember reading that a respondent of an ex parte NMO has the right to go back to court to challenge the order within 14 days. Here's an article about that....do you have a solicitor?

In February of this year Mostyn J in JM v CZ [2014] EWHC 1125 (Fam) provided useful guidance as to the general principles that apply to without notice applications under part IV of the Family Law Act 1996.

The application before him was to discharge an ex parte non molestation order made for the period of a year “unless before then it is varied or revoked by the court”. The respondent was given permission to apply on 48 hours’ notice to the applicant, and a further hearing was listed on 16 May 2014, just under six months from the date of the original order, for reconsideration.

This order was made by a District Judge pursuant to the general practice at the Principal Registry of the Family Division, which is not to list a full inter parties hearing, as the respondent more often than not does not attend resulting in a waste of judicial resources as well as an inconvenience to the applicant.

A without notice non molestation order is made to section 45 of the Family Law Act 1996. By subsection (1), the court may make such an order where it is “just and convenient to do so”. By subsection (2), in considering whether to exercise its powers to make an order ex parte, the court must have regard to all of the circumstances including:

“(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;

“(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and

“(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved…in effecting substituted service…”

By subsection (3), which Mostyn J found to be of key importance: “If the court makes an order by virtue of subsection (1) it must afford the respondent an opportunity to make representations relating to the order as soon as just and convenient at a full hearing.”

Mostyn J concluded that subsection (3) requires a full inter parties hearing very shortly after the ex parte order is made. He felt that merely granting the respondent liberty to apply for such a hearing does not satisfy that provision. He cited the view of the editors of Family Court Practice 2013 in support. They set out

“Whenever an order has been made ex parte, there must be a full hearing as soon as just and convenient thereafter. There are no circumstances in English law in which it is appropriate to make an ex parte order without provision for review once an order has been served. Any such order would be unlawful. It is the duty of the court to list for a full hearing, as required by section 45…”

Mostyn J concluded that the District Judge had made the wrong order. He was aware of the usual practice in the Principal Registry but concluded that there was a danger that this “sacrifices principle on the alter of expediency.”

As part of the application before him Mostyn J asked leading counsel for suggestions as to the appropriate way forward. Mr Chamberlayne QC suggested that the return date should be listed 14 days after the initial ex parte order with the proviso that the respondent ought to confirm in writing, seven days before the return date, both to the applicant and to the court, whether he in fact wished to attend on the return date and to argue for variation or discharge of the order; and that if the respondent failed to do this, then it would be open to the applicant to notify the court that the return date should be vacated and to invite the court to extend the injunction as a matter of box work.

In Mostyn J view if this procedure were to be adopted court resources would be preserved and at the same time a respondent who wished to have a full hearing, to which section 45(3) entitles him, would be able to have one.

I suggest you get a medical report off your doctor outlining any mental health issues you may or may not have.

That\\\'s a good point chris_wood, get a letter from your GP to state you have no mental health problems and are not on any medication.

One of our members, Boycieuk, had a similar situation with his possessions, it might be worth sending him a PM and asking him for some advice.

Have you been to the hearing about this yet? if not you need to make sure you attend and refuse to accept this....fight the Non-Mol and do not accept to take an "Undertaking to the courts" refuse this on the grounds that you want a finding of fact on these unfounded allegations.
If you were to accept to take the "Undertaking to the court" then you could find this working against you in the coming months/years until she is proven to be making this up.

i've been here....was so scared not to see my child that i was bulied by the magistrate to accept to take an "undertaking to the court" that i'd not go near the house without being allowed to by her solicitor ..... i wasn't to threaten her or make her fear for her safety etc... etc... as i had never done any of those things i didn't see why i needed to do that but i agreed to it after the judge as her solicitor had basically said that it would make my ex feel safer....i again didn't see why i should but eventually agreed as the magistrates said that the ex wouldn't allow me near my child until after a hearing tha could be 2mths away.........i couldn't bear to not see my son for that long so i agreed to take the "undertaking to the court"...........BIG MISTAKE!!!!!

i had a need to collect some of my stuff from the house....i contacted her solicitor via phone call.....(not in writting) her solicitor phoned me back sometime later saying it had been agreed for the following night i could....i was advised by my solicitor at the time to have someone with me to ensure there was a witness....i asked the Police to attend - reluctantly they did....all was OK...no agravation or dispute...all calm.

a week later i was refused contact with my son......and then had to take the ex back to court.....the day she would have gotten the paperwork from the court for the emergency contact hearing she contacted the police claiming i was harassing her....i got visited by the police who were very intimidating and were ead set on giving me a verbal harrasment warning....i refused to accept that and showed the court paperwork etc... to which they wouldn't accept it and said that as my ex had claimed there was a "Non-Mol" against me they would issue the warning regardless and if i contacted her again they would be round to arrest me next time!

The facts are that my ex lied to the police as i'd never contacted her at that point only via court paperwork! she lied to the police about the Non-Mol....she failed to explain it was not a Nom-Mol order but an undertaking to the court...she'd managed to convince the DV unit to issue this warning.
that took me months and months of arguing with the police complaints and the courts to get nowhere other than to be told that i shouldn't have accepted to take the undertaking but to have fought it and proved the ex was lying.
12mths or so later i managed to prove her a liar and under oath at the Finding of Fact hearing we had where she finally admitted she'd lied about me hitting her and harrassing her...she gave no reason why or appology and was given a bit of a dressing down by the judge but that was all!!!

If you go to court get your evidence together and submit it....do not accept or agree to anything you haven't done............however if you are or have you need to be 100% honest with the courts now.

My son Has had the same he applied to courts to have cusdoy of his children after his ex telling him she could not cope, when she got court papers she then turned nasty applying for ex parte non molestation order based on lies, he attended a hearing 7 seven days after being served with order to give his side, due to costs he attended with out his solicitor who had advised him what to say his ex having got legal aid based on these lies his solicitor had said you have three choices, ask for a undertakung to be put in place non admitting you have done anything, agree it happen and order stays in place or fight it and this will cost more money, judge would not accept an under taking, my son would not accept he had done anything so now fighting it
All what his ex had put in the order was lies I do not understand how this can be, we have copy of police report and all alligations she was vague over dates details etc but still allowed the order it is wrong so fully understand how you feel, it is costing us to fight this but no option

Sadly, this happens regularly. In situations like this, where an undertaking won't be accepted by the applicant, it is probably better to fight it. It is expensive to do so if you use a solicitor, and there will probably be a fact finding hearing. Best of luck

My son went to court and won the judge cancelled the order we took lots of evidence and in the end it came out she was lying, so my advice to anyone in this situation is fight it if based on lies
She now has no legal aid to fight the access to children, there were quite a few times we thought he would loose but he won the first round

Hi,

My partner has been served NMO twice by his ex. (Not sure on terminology) He was served the NMO by receiving the documents from the court with what his ex was alleging against him. There was a form to complete at the end if he wished to do so, but he didnt. We gathered all evidence against the NMO and went to court. He was seeking to see his child so he accepted an undertaking on the basis that his ex also signs the undertaking as he said she was the abusive one not him. So they both ended up signing an undertaking and the NMO was thrown out.

The second occasion we had someone serve the documents with less than 24 hours till the court hearing as she deemed him to be seriously dangerous to her and the child. They knocked on our door roughly 8/9pm and the hearing was the next morning. Luckily, we knew what he could expect from court but we did the same thing, gathered evidence against each point made in her statement ready for the hearing. In the hearing the judge knew it was not a case of domestic violence it was a child arrangement issue and he again signed an undertaking on the basis his ex signed it too and also asked for certain things to be put into the undertaking that would protect him from future allegations.

Personally if you can avoid an undertaking I would (as i feel it stays with you and almost paints a picture for future cases) and id opt for findings of fact with evidence, just depends if you want to fight against it or not - at the time my partner just wanted to see his child and almost did anything to see his child rather than think what implications it could have on him. Luckily my partner has been cleared from all domestic abuse/violence issues now further investigations happened but it did make it difficult for him in previous child access cases.

As for the doctor side of things, surely you can get a report from your GP ready for the hearing and if the evidence is looked at its there ready.

All the best

Nanna - I am going through the same with my son fighting for contact with his son.
Lots of lies and domestic abuse claims. We had fact finding and he was found to have committed all the actions she claims.
Can I ask in your post you said you took lots of evidence, we are struggling to find evidence as very hard to prove something that did not happen, and the DV she claims was 4 years ago!

From 1 Nanna to Another xx

We were lucky had loads of texts on my son's phone to back up his side ,she had no witnesses to the alleged assaults and no proof of any assault yet she got the order, he had two witnesses when she assaulted him ,the system does not want you to fight these cases and he won ,had he listened to the first judge and accepted the order it would have affected his access case with regard to the children
it seems to me with the way the law is in the case of non molestation orders you are guilty before even getting to court ,non of this innocent until proved guilty
he had to fight it and luck was on his side