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Molestation order questions

edited 30 November -1 at 12:00AM in MoneySaving Dads
21 replies 4.9K views
2

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  • Comms69Comms69
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    Glatter wrote: »
    You make it sound as though the courts are running a job creation scheme :cool:

    I had hoped the content of my post was entirely clear, but I respect your right to disagree with what I posted, just as the OP says they disagree with the terms of the non-molestation order they say they have been served, but that does not make either null and void. :)



    I don't understand your point.


    You are factually incorrect in some regards.


    Primarily you seem to not understand that orders can be served ex parte, which is where there is a fundamental difference between how such orders can be given.
  • Savvy_SueSavvy_Sue
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    Call me suspicious, but is it definitely a genuine court order?

    The OP doesn't mention any appeal - those who know about such things seem to suggest one should be possible.

    Rather feel OP cannot afford NOT to have a solicitor!
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  • Comms69Comms69
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    Savvy_Sue wrote: »
    Call me suspicious, but is it definitely a genuine court order?

    The OP doesn't mention any appeal - those who know about such things seem to suggest one should be possible.

    Rather feel OP cannot afford NOT to have a solicitor!



    Not an appeal as such, but a full hearing. Now I don't remember fully, but I'm pretty sure the order had a date on it if I wished to have the hearing, BUT my solicitor might have confirmed this on my behalf.


    I agree a solicitor is worthwhile, depending on my legally minded you are, I was able to get a substantial discount by writing the full reply - £350 down from £600.


    You can check the validity of the order either at the courts, or with the police. The courts might be quicker.
  • Comms69 wrote: »
    I don't understand your point.
    Quite. :cool:
    Comms69 wrote: »
    You are factually incorrect in some regards.
    In your opinion.;)
    Comms69 wrote: »
    Primarily you seem to not understand that orders can be served ex parte, which is where there is a fundamental difference between how such orders can be given.
    With all due respect, you clearly have no idea what I do or do not understand.
  • Savvy_Sue wrote: »
    Call me suspicious, but is it definitely a genuine court order?

    The OP doesn't mention any appeal - those who know about such things seem to suggest one should be possible.

    Rather feel OP cannot afford NOT to have a solicitor!

    You are right to be suspicious.

    The OP has not stated the order was made without notice
    (I understand this forum expects us to post in English, as indeed is the expectation nowadays within the legal profession, especially when in the presence of, or otherwise communicating with, lay persons)

    It would only be appropriate to make such an order made without notice, if:
    a) it is deemed necessary to grant without any delay making such notice impossible, or
    b) there is a real risk that, with notice, the respondent, may further molest the applicant in an attempt encourage the abandonment of the application.

    In this case, where admittedly we only have the evidence of the respondent, the OP claims only to have visited and communicated with his wife for the purposes of securing some access to his children, and this order has come as somewhat of a surprise. That, on the face of it, would not appear to be a case where an application without notice would be necessary nor appropriate.

    Of course, the underlying issue here is that the court would have made their decision based on the evidence of the applicant, and therefore not have heard from the respondent.

    Where a court makes such an order against the respondent without notice, such an order must include:
    1. the fact it was was made in the absence of the respondent, that it was made only on the evidence of the applicant, and that no finding of fact has been established
    2. a return date, time & location (essentially a hearing where the respondent can attend and put their case forward to the court) within 14 days of the order is included.
    3. the order must also contain a statement regarding the right to apply to have the order set aside or varied. Furthermore this must include that there is no requirement to await the return date stated. This is important, as such an application would normally need to have been made within 7 days of the order.

    The OP does not seem to have been given any of this based on lack of mentioning any of it in their OP; indeed the OP admits 7 days have now elapsed from the original date of the order.

    If the OP genuinely cannot afford legal representation, then legal aid may be available, although that will take weeks to have approved, so would require a legal representative to act in advance of funding approval (which of course it may not be), or an adjournment to be requested.
    Legal representation in court is not always necessary; indeed a court cannot object to anyone wishing to rtepresent themselves in court.
    A solicitor will probably be able to advise what the OP should do through an initial interview, assuming the OP goes well prepared with all the facts to hand, including whether representation at court is advised - such an initial interview is often given free of charge or for a nominal fee (refer to the CAB for details of who offer this locally)
    In the event legal aid is not available to the OP, representation in court is advised, and the OP is not in a position to pay, it may be possible to find someone to provide this without charge (that's 'pro bono' to those who like to confuse others by using a langauge hardly anyone else ever uses ;))
  • Comms69Comms69
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    Glatter wrote: »
    Quite. :cool:

    In your opinion.;)

    With all due respect, you clearly have no idea what I do or do not understand.



    You aren't helping yourself. Your post is only correct if the order is given after a hearing. When heard ex parte (without notice) - which is the case here - you are incorrect.


    You aren't helping the OP by then make 'smart' comments, without actually addressing what I've said.
  • Comms69Comms69
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    Glatter wrote: »
    You are right to be suspicious.

    The OP has not stated the order was made without notice
    (I understand this forum expects us to post in English, as indeed is the expectation nowadays within the legal profession, especially when in the presence of, or otherwise communicating with, lay persons) - yes they have - "1 week ago I get a court order delivered by hand, opened it thinking it was about the up and coming divorce to find it's a non molestation order against me for harrassment and I'm not aloud to contact her or go with 100m of her or her property." - if there was a hearing the order would be given at the hearing and the OP would know about it.

    It would only be appropriate to make such an order made without notice, if:
    a) it is deemed necessary to grant without any delay making such notice impossible, or
    b) there is a real risk that, with notice, the respondent, may further molest the applicant in an attempt encourage the abandonment of the application.



    Judges err on the side of caution when making ex parte orders as the respondent has the opportunity to dispute it. The only requisite is that the claimant makes the appropriate statements. Given I've been there and seen what the statement was which granted my ex a non-mol, and subsequently I contested this and won, I know the standard is low.

    In this case, where admittedly we only have the evidence of the respondent, the OP claims only to have visited and communicated with his wife for the purposes of securing some access to his children, and this order has come as somewhat of a surprise. That, on the face of it, would not appear to be a case where an application without notice would be necessary nor appropriate. - funnily enough, it's quite common for people to lie. and having a non-mol means legal aid funding for any child arrangement proceedings, there is a pretty damning reason to get a non-mol. There is no finding of fact in a without notice applications. A statement is provided to the judge, who then issues the order on the basis of that statement.

    Of course, the underlying issue here is that the court would have made their decision based on the evidence of the applicant, and therefore not have heard from the respondent. - indeed

    Where a court makes such an order against the respondent without notice, such an order must include:
    1. the fact it was was made in the absence of the respondent, that it was made only on the evidence of the applicant, and that no finding of fact has been established - Agreed
    2. a return date, time & location (essentially a hearing where the respondent can attend and put their case forward to the court) within 14 days of the order is included. - agreed
    3. the order must also contain a statement regarding the right to apply to have the order set aside or varied. Furthermore this must include that there is no requirement to await the return date stated. This is important, as such an application would normally need to have been made within 7 days of the order. - agreed

    The OP does not seem to have been given any of this based on lack of mentioning any of it in their OP; indeed the OP admits 7 days have now elapsed from the original date of the order. - that is a concern of mine also

    If the OP genuinely cannot afford legal representation, then legal aid may be available, although that will take weeks to have approved, so would require a legal representative to act in advance of funding approval (which of course it may not be), or an adjournment to be requested.
    Legal representation in court is not always necessary; indeed a court cannot object to anyone wishing to rtepresent themselves in court. - agreed, but it's worth paying for considering the alternative is malicious reporting of breaches and the cost of any child arrangement hearings
    A solicitor will probably be able to advise what the OP should do through an initial interview, assuming the OP goes well prepared with all the facts to hand, including whether representation at court is advised - such an initial interview is often given free of charge or for a nominal fee (refer to the CAB for details of who offer this locally)
    In the event legal aid is not available to the OP, representation in court is advised, and the OP is not in a position to pay, it may be possible to find someone to provide this without charge (that's 'pro bono' to those who like to confuse others by using a langauge hardly anyone else ever uses ;))



    Agreed and to be honest this post was much better than your initial one. I think it's obvious this was served ex parte
  • edited 17 October 2019 at 11:58AM
    TBagpussTBagpuss
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    edited 17 October 2019 at 11:58AM
    OP, are you sure that it is an order and not an appliation *for* an order?

    If it is an order, then if it was made without notice, it should include a 'return date' when you can go to court to oppose it continuing and/or vary the terms (for instnace, to suggest a smaller excluion zone which would not prevent you driving along the maion road)

    If you are sure that it is an order, then read it carefully to make sure that you understand it.

    For instnace, orders of this kind often include an exclusionzone but it is normally around a location, not a person. So if the order forbids you from coming within 100m of her homne, then provided that the main road is more than 100m from her house, you will not be breaking the law if you drive along the road, even if she happens to be walking along side it at the time.

    If it does actually say that you can't go within 100m of *her* then you would be well advised to go back to the court to aask that this is varied for the exact reasons which you give - it puts you at risk of unintentionally breaking the order as you cannot know where she is at any time.

    I woyld suggest that you take the document you have recieved and see a solicitor. Many off er afree intital consultation, of 30 minutes or 1 hour, and they will be able to tell you whether the order is genuine, and what it means.
    All posts are my personal opinion, not formal advice Always get proper, professional advice (particularly about anything legal!)
  • elsienelsien
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    OP doesn't appear to be coming back to the thread.
    All shall be well, and all shall be well, and all manner of things shall be well.

    Pedant alert - it's could have, not could of.
  • BAFEBAFE
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    Glatter your information is factual and helpful and I hope the OP reads it and takes on board what you've said. Ignore Comms69 (I do) - he's a last word freak and has a MASSIVE chip on his shoulder about women.
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