The upsetting breakdown of a relationship may be accompanied by angry and hurtful phone calls or digital messaging. However, as a guideline High Court ruling showed, such conduct may not be enough to justify the grant of an emergency non-molestation order.
The case concerned a year-long relationship between a man and a woman who also worked together. She accepted that he had not been verbally or physically abusive towards her, but alleged that he had engaged in various forms of controlling and manipulative behaviour, thereby putting her in fear of him.
After she terminated the relationship via WhatsApp, he continued to telephone and message her in a way that she found distressing. On the advice of the police, she sought an emergency non-molestation order against him. Following a hearing at which he was not represented, however, her application was dismissed.
Ruling on her challenge to that outcome, the Court noted that the strain placed on relationships by the COVID-19 pandemic had led to significant growth in the number of applications for non-molestation orders. In many parts of the country, the number of such applications had not fallen back to pre-pandemic levels.
The Court noted that the concept of molestation does not necessarily imply the use of violence or threats of violence. Telephone calls or digital messaging may amount to molestation if they descend into harassment that causes alarm or distress. The law focuses on the subjective impact of such conduct on alleged victims, who are not required to prove a positive intent to molest.
Rejecting the appeal, however, the Court observed that the end of a relationship is often accompanied by significant upset. The man had probably sent an excessive number of texts and emails, at least one of which was angry and hurt. They were, however, in no sense threatening or controlling and he had ceased such conduct some time prior to the woman’s application. Overall, the facts of the case provided no proper basis for judicial intervention.
Giving guidance for the future, the Court had no doubt that there are far too many emergency non-molestation orders sought at one-sided hearings where there is no reasonable basis for taking such a course. Such orders should not be granted by default but only in exceptional circumstances where there is a significant risk of immediate harm.