What Counts as a Breach of a Non-Molestation Order? A Father’s Guide to Staying on the Right Side of the Law
“Last Updated” Date: Sunday, 12 October 2025
Being served with a Non-Molestation Order is a profoundly stressful experience. The constant pressure, the feeling of walking on eggshells, and the devastating consequences of a simple mistake can lead to the feeling that you have been subjected to significant emotional discomfort. The rules often feel vague, creating a minefield where one accidental text message or misplaced word could mean immediate arrest, a criminal record, and the derailment of your child contact application.
You need clarity and authority to navigate this period safely. This guide cuts through the confusion, providing a clear, strategic map of the law. We will establish precisely what the courts and police consider a “breach,” expose the dangerous traps of indirect contact, and give you the practical steps you need to stay safely within the law.
Key Takeaways
- A Breach is a Crime: A breach of a Non-Molestation Order is a criminal offence under Section 42A of the Family Law Act 1996, punishable by up to five years in prison.
- Indirect Contact is Key: The most common trap is indirect contact—using a third party (friend, family) or social media to communicate with or harass your ex-partner.
- Power of Arrest: Most orders carry a Power of Arrest, meaning the police can arrest you immediately on suspicion of a breach without needing a warrant.
- Content is Irrelevant: Sending an ‘apology’ or a ‘polite question’ is still a breach if the order forbids contact. The act of contact is the offence, not the content.
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Jump To
- A Deep Dive: Direct vs. Indirect Contact and the Law
- Your Strategic Path: A Checklist for Compliance
- At a Glance: Breach of an Order vs. Breach of an Undertaking
- Common Traps That Lead to a Breach
- FAQs about Breaching a Non-Molestation Order
From my time as a Cafcass and Children’s Services Social Worker, I saw first-hand how judges and police interpret these orders. They are not interested in your side of the story or your intentions when a breach occurs; they look at the black-and-white text of the order. Your only safe option is to understand these terms literally and completely, as explained in our general non-molestation order guide.
A Deep Dive: Direct vs. Indirect Contact and the Law
The Offence of Breach
The offence is defined by Section 42A of the Family Law Act 1996. It states that a person commits an offence if they do anything that they are prohibited from doing by the Non-Molestation Order, without reasonable excuse. This is a triable either way offence with a maximum penalty of five years’ imprisonment.
What This Means For You: Crucially, the prosecution only has to prove that you intended to do the act (e.g., intended to press send on the text), not that you intended to break the law or intended to cause distress. The legal guidance on sentencing confirms that the severity is based on the harm caused, not just the action, as detailed by the Sentencing Council.
Indirect Contact
Indirect contact is any action that uses a go-between or a platform to achieve the contact or molestation you are forbidden from doing directly. This is the area where most unintentional breaches occur because fathers mistake it for a ‘loophole’.
What This Means For You: You are responsible for the actions of others if you have instructed, encouraged, or even merely allowed them to act on your behalf. The simplest rule is: Do not communicate with your ex-partner about anything, via anyone, unless the order explicitly allows for a specific, court-compliant means of communication. If you believe the order was granted on false allegations, you must still comply and seek to discharge it legally.
Example: Snippet from a Defence Statement
The Applicant alleges a breach of the Non-Molestation Order occurred on 01/10/2025 due to me being in the proximity of her address. The Order prohibits me from attending the vicinity of [Address].
I confirm I was present on Smith Road on the date in question. However, this location is on my direct route to my new employment and is 200 metres from the protected address, which is not in the ‘vicinity’ as generally understood by case law, nor did I stop or approach the house. My work shift pattern log is attached at Exhibit A.
I have voluntarily installed a GPS tracker on my vehicle and shared access with my solicitor to demonstrate I adhere strictly to the no-contact and geographical restrictions, as confirmed in the tracking log at Exhibit B.
This evidence demonstrates not only a ‘reasonable excuse’ for my presence in the general area but a proactive, sustained commitment to avoiding any prohibited act under the Family Law Act 1996.
A Real Life Scenario: Sarah (the mother) sends Paul (the father) a text message saying, “The children miss you, you should call.” Paul, desperate to speak to his children and seeing an olive branch, replies, “I’m not allowed to, you know that.” Sarah immediately screenshotted the reply and called the police. Paul was arrested. His reply was an act of direct contact by him, which constituted a criminal breach of the order, even though his intention was simply to explain the law.
Your Strategic Path: A Checklist for Compliance
To keep yourself safe from accidental or alleged breaches, implement these four, non-negotiable compliance rules immediately. Staying safe is your best defence.
- Read and Map Your Exclusion Zones: Go through your order line by line. Highlight every specific prohibition, particularly geographical exclusion zones. Plot them on a map and plan alternative routes for daily travel to ensure you never accidentally enter a prohibited area.
- Block and Purge Digital Presence: Block your ex-partner on every digital platform (phone, text, email, social media, etc.). Do not just “mute” or “unfollow”—a complete block eliminates the risk of accidental contact.
- Establish a Lawyer-Only Communication Channel: Ensure all necessary communication about child contact is strictly handled by your solicitor or, if the order allows, through a dedicated, neutral co-parenting app where all messages are recorded.
- Implement the ‘Walk Away’ Rule: If you see your ex-partner in public, your only action is to immediately and silently remove yourself from the situation. Do not speak, gesture, or react. Any interaction can be reported as molestation.
At a Glance: Breach of an Order vs. Breach of an Undertaking
The consequences of breaching a court order are severe, but the consequences of breaching a voluntary undertaking are vastly different. Know which one applies to you and the implications for your future. You can read our full guide on Undertakings vs. Non-Molestation Orders here.
| Feature | Breach of a Non-Molestation Order | Breach of an Undertaking |
|---|---|---|
| Goal | ✅ To protect the Applicant via the Criminal Justice System. | ❌ To secure a promise to the court under Civil Law. |
| When to Use It | When the court finds sufficient evidence of molestation and exercises its power to impose a formal order. | Often offered by the Respondent and accepted by the court as a less punitive, non-criminal alternative to a formal order. |
| Example | The police arrest you immediately under the Power of Arrest attached to the order. | The Applicant must apply back to the Family Court to start Contempt of Court proceedings. Police cannot arrest you. |
| Legal Test | Criminal Test: Did you, without reasonable excuse, do the prohibited act? (S.42A FLA 1996) | Civil Test: Did you knowingly and deliberately disobey your promise to the court? |
| Outcome | ✅ Can result in a criminal conviction and up to five years in prison. | ❌ Can result in a finding of contempt, a fine, or up to two years in prison, but does not create a criminal record. |
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Common Traps That Lead to a Breach
The digital world is the most fertile ground for accidental breaches. From my time reviewing cases for the court, I’ve seen fathers use location-based apps like “Find My Friends” to ‘innocently’ check if their ex-partner is home, only for that action to be used as evidence of pestering or stalking in court. Treating your compliance as a military operation is the only way to stay safe.
Common Pitfalls:
- Replying to Her Messages: Why this is a mistake: Your ex-partner contacting you first is not a defence, nor does it invalidate the order against you. Your reply is a new, separate act of contact by you, making it a clear breach.
- Failing to Seek Legal Means to Discharge the Order: Why this is a mistake: Complaining about the order while waiting for it to expire shows a passive attitude. Taking proactive steps to legally challenge or discharge the order demonstrates compliance and commitment to due process.
- Using Children as Information Conduits: Why this is a mistake: Asking your child about their mother’s new partner, her living situation, or what she is doing is indirect harassment and will be viewed by CAFCASS as emotionally harmful to the child.
FAQs about Breaching a Non-Molestation Order
Don’t guess the rules. These definitive answers, aligned with the legal text above, cover the most critical questions fathers have about Non-Molestation Order compliance.
What is the “power of arrest” attached to a non-molestation order?
The “power of arrest” is a specific provision granted by the judge under the Family Law Act 1996. It means that if a police officer has reasonable grounds to suspect that you have done anything prohibited by the Non-Molestation Order, they can arrest you immediately without needing to obtain a warrant first. This is why immediate compliance and zero ambiguity are essential—the consequence is instant detention.
Can I go to jail for breaching a non-molestation order?
Yes. A breach is a serious criminal offence under Section 42A of the Family Law Act 1996. While the maximum penalty is five years in prison, even minor, single breaches are taken extremely seriously. If you are convicted, the offence will result in a criminal record, which can have life-long consequences. You can read the official government consultation documents on sentencing.
Is sending a text message a breach, even if it’s about the kids?
Yes, unless the order has a specific, written clause that explicitly allows communication via text for the sole purpose of arranging child contact. In the vast majority of cases where the order forbids contact, any text message is a direct breach because it is a prohibited act of contact.
What is an “indirect” breach of a non-molestation order?
An “indirect” breach is when you circumvent the direct prohibition by using a third party or a public platform to communicate, harass, or molest the protected person. The most common examples are asking a friend to pass on a message or posting content on social media that is clearly aimed at your ex-partner.
What happens if my ex-partner contacts me first? Is it a trap?
It can be a trap. The order is against you, and her contacting you does not automatically invalidate it. A response from you is a breach by you. You must not reply. The correct action is to save a screenshot or log of the contact, inform your legal representative immediately, and remain silent.
What should I do immediately if I’m accused of a breach?
If the police contact you or arrest you, your first words should be “no comment.” You have the right to free and independent legal advice from a solicitor specialising in criminal law. Do not attempt to explain or justify yourself to the police; wait until you have a lawyer present, as anything you say can be used in the criminal proceedings against you.
Don’t Wait for Arrest: Get Expert Compliance Support Today
At Dads Consultancy, we provide the specialised, expert support to move you from crisis to control. We can help you with:
- Making Your Application (C100)
- Handling the CAFCASS Call
- Navigating Child Arrangements Orders
- McKenzie Friend Support
- MIAM/Mediation Guidance
- Responding to Non-Molestation Orders
- Drafting Powerful Position Statements
- Navigating Section 7 Reports
The threat of a Non-Molestation Order is a test of your compliance and self-control that will define your family court case. Don’t risk your freedom or your time with your children by misinterpreting a single clause. Contact us today for a fixed-fee consultation to receive a precise, line-by-line analysis of your order, giving you the definitive strategy to remain safe and compliant.
🧠 Insider Insight: Lach, our founder, is a former Cafcass and Children’s Services Social Worker. He has been on the inside of the family court system, writing the very reports that influence court outcomes. Now he uses that insider knowledge to help dads navigate the process effectively. Learn more about Lach’s background.
