Domestic violence is one of the most topical legal issues in society.
Magistrates in Queensland deal with tens of thousands of applications in any given year. The nature of one application differs to the next – some applications seek basic protection for an aggrieved person, whilst others seek a range of different conditions to protect not only the aggrieved, but named persons as well.
What, however, happens, once an application is made? What options are available to a respondent to deal with the application?
There are a number of different options available to an individual responding to proceedings – what follows is not an exhaustive list.
Firstly, a respondent has the right to progress the matter towards a hearing and have a Magistrate determine whether or not it is necessary and desirable for an order to be made on a final basis. This option often incurs significant time and cost, and it may not be a viable option for a respondent even though they dispute the nature of the allegations leveled against them.
A further option available to the respondent is to consent to an order on a without admissions basis. There may be some negotiation between the parties as to what conditions are contained on an order, but proceeding in this manner can often result in a matter being resolved in a more timely and cost effective way. Although there is no finding of fact, as such, the consequence of consenting to an order can impact on a respondent. For example, if a respondent is the holder of a weapon’s licence, they are unable to continue being the holder of a weapon’s licence as a result of the order made. Further, there would be an order of a court, and this could be used adversely against an individual in other proceedings, such as family law matters. Whilst resolving the matter by consenting to an order on a without admissions basis is a tool often used, it is not appropriate in every instance.
So what happens to those who want to resolve the matter in another way, but do not necessary want to incur the time and expense associated with progressing the matter towards a hearing? Well, other than making a successful application to have the matter struck out, a respondent may be able to resolve the matter by entering into an undertaking.
Resolving the matter by way of an undertaking, however, is not always simple. In order for an undertaking to be entered into, both the applicant and respondent need to agree to the matter being resolved on that basis. There are practical difficulties associated with this in circumstances where an applicant/aggrieved and respondent do not get along.
An undertaking is, in simple terms, an agreement (in all almost all instances evidenced in writing) between the parties for the respondent to do, or not do, certain things. It is an informal agreement signed by the respondent. They can often be hand-written, which reflects the informal nature of the undertaking.
A copy of the undertaking may be placed on the court file, however, it does not constitute an order of the court. Instead, proceedings are withdrawn, matters are discontinued, and there is no order from a Magistrate outlining conditions the respondent must adhere to.
Given that there is no formal order of a court, what happens when an undertaking is breached?
As stated above, an undertaking is not a formal order of the court. A respondent who breaches a condition of a protection order made by a court can be dealt with in the criminal courts for breaching such order, but the same does not apply to those who breach the terms of the undertaking.
Should a respondent breach an undertaking, they do not get charged with breaching an undertaking. No such charge exists. There may be other consequences of their behavior (such as if they assault the aggrieved, they may be charged by the Queensland Police Service with an assault type charge), however, they will not be charged with contravention of an order.
Instead, the only recourse available to an aggrieved person is to make a further application for a domestic violence protection order. Whilst an individual is not charged with breaching an undertaking, evidence of a breach is likely going to give strong grounds to support a finding that it is necessary and desirable for an order to be made upon a further application to the court.
It is important that both applicants and respondents receive detailed legal advice regarding the impact an undertaking may have on domestic violence proceedings prior to agreeing to finalise matters on this basis. Undertakings are just one avenue available to resolve domestic violence applications, however, they are not appropriate to be used in every case. Each case needs to be assessed on its own merit, and there may be additional factors present as to why an undertaking is, or is not, a good way of resolving domestic violence proceedings.
Creevey Russell Lawyers have a dedicated team representing both applicants and respondents in domestic violence proceedings. We are happy to take enquiries regarding our domestic violence services at any time.
Ph: +61 7 3009 6555