Held, application not reinstated. (1) Although there was nothing unusual about the present case, non-molestation applications rarely came before a judge of the High Court and it was likely to be helpful to set out the basic principles that applied to such applications and orders. Extracted from the legislation and the relevant authorities, the the basic principles that applied to non-molestation applications and orders were: (i) on a without notice application the court was to consider whether there was a risk of significant harm attributable to the respondent if the order were not granted immediately; (ii) the court was also consider whether the applicant would be deterred or prevented from making the application if the order were not made immediately; (iii) a without notice order was only to be made in exceptional circumstances and with proper consideration for the rights of the absent party; (iv) the court was to use its powers under the Family Law Act 1996 with caution, particularly at a one-sided hearing, or necessarily on a paper consideration without the other party having notice; (v) “molestation” did not imply necessarily either violence or threats of violence but could cover any degree of harassment that called for the intervention of the court; (vi) the primary focus of the court was to be on the “harassment” or “alarm and distress” caused to those on the receiving end; and (vii) there did not have to be a positive intent to molest. It was important that the principles be applied properly, and orders not simply granted by default. In particular, a without notice application was only to be made in exceptional circumstances where there was a risk of significant harm and the statement in support of the application was to deal expressly with why the case was exceptional and what the significant risk alleged was (paras 23, 24).

(2) While there was no definition of molestation, and plainly the impact of particular conduct could be very different on different individuals, there did not have to be a threat of violence. Further, electronic communications could amount to harassment and cause alarm. However, orders were not to be granted where the evidence suggested only that there was some upset at the end of a relationship, and little or nothing to suggest the conduct complained of would have amounted to “molestation”. The law was also clear that there did not have to be a positive intent to molest. However, that did not mean that the test was a wholly subjective one whereby the applicant simply had to feel distress and such subjective distress alone did not justify the making of an order. The conduct had to be sufficient and of a nature or degree that justified the intervention of the court. Here, where the respondent had probably sent the applicant an excessive number of text messages and e-mails at the end of the relationship and at least one of them was angry and hurt but, by the time the application was made, that conduct had ceased, there was no proper basis for the intervention of the court and the application was not to be reinstated (paras 26, 27, 28–29).