Undertakings

  • Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (Report 114, 2010).

    Undertakings – Chapter 18

    18.153 A person seeking a protection order may agree to withdraw his or her application on the basis that the person against whom the protection order is sought (the respondent) provides an undertaking. An undertaking is a promise to the court that a person will do, or refrain from doing, certain things. Usually, the undertaking will include the same types of conditions and prohibitions which could have been included in the protection order had it been issued. Undertakings may either be given orally by the respondent or the respondent’s lawyer, or given in writing and signed. It is also possible for both the applicant and respondent to give undertakings to the court.

    18.156 …unlike breach of a protection order, breach of an undertaking is not a criminal offence and cannot be enforced. Agreeing to an undertaking instead of pursuing an application for a protection order may, therefore, compromise the protection and safety of a victim of family violence…Stakeholders noted that victims of family violence who have accepted an undertaking often return to court to seek a protection order because the undertaking has been breached. In such cases, both the undertaking and the breach may be used as evidence in support of an application for a protection order.

    18.157 …there is a concern that victims of family violence may be pressured into withdrawing an application for a protection order and accepting an undertaking, particularly where that party is unrepresented.

    18.158 …the Initiating Application (Family Law) form, which must be completed by a person wishing to commence proceedings in a federal family court, asks if there are any existing undertakings to a court about family violence issues concerning any of the parties or children in the application. There is, however, no obligation on parties to inform a court exercising jurisdiction under the Family Law Act about undertakings in relation to family violence, nor is the existence of an undertaking a specified factor to be considered when determining the best interests of a child. A number of stakeholders expressed the view that while information about undertakings is sometimes included in affidavits, federal family courts give them little weight because undertakings are not orders of a court.

    Recommendation 18–4 State and territory courts should require that undertakings by a person against whom a protection order is sought should be in writing on a standard form. The form should require each party to sign an acknowledgment that he or she understands that:

    1. breach of an undertaking is not a criminal offence nor can it be otherwise enforced;
    2. the court’s acceptance of an undertaking does not preclude further action by the applicant to address family violence; and
    3. evidence of breach of an undertaking may be used in later proceedings.
  • Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws (Final Report 2014).

    Undertakings

    In its Discussion Paper (at pp121-123) the Commission referred to a number of concerns among stakeholders in relation to undertakings. Undertakings are promises by one party (or sometimes both parties) not to behave in a particular manner and are sometimes entered into by parties in lieu of a final violence restraining order. An undertaking may contain the same types of conditions as would ordinarily be included in a violence restraining order. There is nothing in the Restraining Orders Act that deals with undertakings and, although they can be made orally or in writing, the Commission understands that, generally, undertakings in Western Australia are made in writing. There is no sanction for failing to comply with this type of undertaking and they are not enforceable by the police. However, a breach of an undertaking may be evidence to support a future application for a violence restraining order.

    There was significant concern expressed during consultations that victims of family and domestic violence are being pressured into accepting undertakings instead of proceeding with their application for a violence restraining order. This pressure may arise because of a fear of or lack of understanding of the process or because the applicant is unrepresented. It was suggested that pressure to enter into undertakings is sometimes applied by the magistrate because of workload and court listing demands.
  • Victorian Law Reform Commission, Review of Family Violence Laws (Report 2005).

    This report reviews the Victorian justice system’s response to family violence—particularly the intervention order system—and provides detailed recommendations for improvement. Undertakings are dealt with at pp296-303 of the report.

    Undertakings

    8.126 Under the current intervention order system, applicants for intervention orders are sometimes persuaded by the magistrate, the respondent’s lawyer or their own lawyer to accept an undertaking from the perpetrator rather than go ahead with an application for an intervention order. When respondents make an undertaking to the court, they agree to refrain from behaving in a certain way, such as assaulting, harassing, or threatening the protected person. The Act does not provide for the respondent to give an undertaking as an alternative to the court making an intervention order. If respondents breach an undertaking, they have not committed an offence and the police cannot take any action unless another criminal offence has been committed.

    8.127 Under the Magistrates’ Court Family Violence and Stalking Protocols, the giving of an undertaking results in the applicant withdrawing the intervention order application. If the respondent fails to adhere to the undertaking, the applicant can complete a ‘Notice of Reinstatement’ which reinstates the application. The protocols also state: It is preferable that any undertaking document used NOT look like a Court order to avoid confusion. It should also have a statement on it ‘This is not an intervention order’.

    8.128 In 2004–05, approximately 1000 applications for intervention orders were withdrawn, with the respondent accepting an undertaking rather than an intervention order. This represents 5% of all applications for family violence intervention orders.

    Recommendations

    99. The Magistrates’ Court Protocols should state that an undertaking should only be accepted by the court where the court is satisfied that:

    • the applicant fully understands the consequences of accepting an undertaking (eg if the applicant has received legal advice or is legally represented);
    • in all the circumstances of the case, it is more appropriate to accept an undertaking rather than make an intervention order.

    100. The Magistrates’ Court Protocols should state that when deciding whether it is appropriate to accept an undertaking, the court should have regard to:

    • the respondent’s age (ie that an undertaking may be more appropriate where the respondent is aged under 18 years);
    • the nature of the violence perpetrated by the respondent, as disclosed in the application; and
    • whether making an intervention order with a condition that the respondent not assault or harass the applicant as the only condition is more appropriate in all the circumstances of the case, rather than accepting an undertaking.
    101. The Magistrates’ Court Protocols should make it clear that an undertaking has the legal effect of suspending the intervention order application for the period of the undertaking. If an undertaking is breached, the applicant has a right of reinstatement of the original application or may make a new application for an interim order.