Undertakings

  • Judicial College of Victoria, Family Violence Bench Book (2014).

    The following sections of the bench book deal with undertakings in the context of family violence related proceedings:

    2.2.5 Undertakings

    The Victorian Family Violence Protection Act (FVPA) does not contain any provisions regarding the use of undertakings in response to family violence.

    The Victorian Law Reform Commission (VLRC) review of family violence laws reported that undertakings were often used inappropriately by the courts or resulted in less than ideal outcomes. However, the Commission did not recommend prohibiting the use of undertakings, because in some circumstances an undertaking might be the most appropriate outcome.

    2.2.5.1 Limitations of undertakings

    • Breach of an undertaking is not an offence and the police cannot take any action on the basis of the breach. Often an affected family member will not understand this limitation and has a false expectation of the protection offered by an undertaking. This contributes to a low level of reporting of breach of undertakings;
    • An affected family member may be intimidated into accepting an undertaking even when it is against her interests. The undertaking can form another part of the control that a perpetrator of family violence seeks over the affected family member, and may make the legal system complicit in that violence;
    • Undertakings are no more than a promise by the perpetrator to refrain from further family violence. Frequently, the perpetrator has previously made and broken promises to the affected family member not to be violent again;
    • There are some forms of undertaking in use that have a similar appearance to a court order which may blur the distinction between an order and an undertaking in the mind of an affected family member.

    2.2.5.2 Advantages of undertakings

    • For some women, accepting an undertaking is the first step they are prepared to take. It may encourage a woman to seek an intervention order if the violence continues.
    • If there is not enough evidence to support an intervention order, an undertaking may be the next best alternative. A breach of an undertaking would be evidentiary support for a subsequent intervention order.
    • An undertaking may be more appropriate for child respondents as it reduces the risk of juveniles being drawn into the criminal justice system.

    2.2.5.3 VLRC recommendations on use of undertakings

    The VLRC recommended that the court should only accept an undertaking when:

    1. The court is satisfied that the affected family member fully understands the consequences of accepting an undertaking (e.g if the applicant has received legal advice or is legally represented).
    2. An undertaking is a more appropriate outcome than an intervention order in all the circumstances, including:

      • the age of the respondent - an undertaking is more appropriate where the respondent is under 18 years of age;
      • the nature of the violence - an undertaking should never follow serious acts of violence;
      • or whether, in the circumstances, a more appropriate outcome would be an intervention order with limited conditions such as a prohibition on further acts of family violence.

    Finally, the Commission recommended that judicial officers do not inform parties that breach of an undertaking may result in a charge of contempt of court…The appropriate response to a breach of an undertaking should be the reinstatement of the original application for an intervention order or a new application for an interim intervention order.

    2.6 Interaction with family law

    2.6.1.4 Undertakings

    Undertakings are not expressly governed by the Family Law Act (FLA). In accordance with common practice, parties may give undertakings to facilitate the management of a case, or in exchange for another party compromising an aspect of the proceeding. A court may suspend, vary, discharge or revive an undertaking under s68R FLA.
  • Neilson, Linda C, Domestic Violence Electronic Bench Book (National Judicial Institute, 2017).

    In Section 16.10.11.5: Concerns about undertakings: Domestic violence context, the bench book raises these questions:

    • ‘Are undertakings from a parent who has engaged in domestic violence or who has demonstrated disrespect for law or who has a history of non-compliance with court orders likely to be reliable?’
    • ‘What happens to the safety of the custodial parent and child if the undertaking parent decides to ignore or to retract the undertakings upon the child’s return in the other jurisdiction?’