Navigating Domestic Violence Protection – Orders v Undertakings
By Best Wilson Buckley Family Law |05 September 2019 |Domestic and Family Violence-Articles
When faced with domestic violence, many people find the process of navigating the pathways for protection incredibly daunting, as well as scary.
There are two ways a person can seek protection from domestic violence in Queensland:
- - protection order;
- - undertaking.
The police can make an application to the Queensland Magistrates Court on a person’s behalf for a protection order or, alternatively, the person experiencing the domestic violence, known as the “aggrieved”, can make an application themselves. By filing their own application, the aggrieved person will need to prosecute their own case for protection as against another person, known as the “respondent”, and set out the domestic violence they have suffered and why they need protection.
While simply trying to seek protection for their own personal safety by filing a Court application, many domestic violence sufferers are then faced with the challenge of navigating the Court process. Many find the prospect of having to attend Court and prosecute their application to prove the domestic violence extremely daunting, particularly if they are self-acting and when they have to face their abuser in person in the Court. To make matters worse, the abuser may simply deny the allegations and put the aggrieved person to the challenge of “proving” it in Court.
In our democratic society, if the respondent denies the domestic violence, the magistrate may have no choice but to set the matter down for a trial. Both parties will then need to file an affidavit and any other documents in support of their case so that, at trial, the magistrate can “test” the evidence of the application and make a decision about whether domestic violence has been committed and whether to make an order to prevent it happening again.
A protection order is an order of the Court and is made when the Court finds that domestic violence has been committed. An order provides the aggrieved with formal legal protection from the respondent for a set period of time, up to a maximum period of five years.
Orders can include conditions to be of good behaviour and not commit domestic violence, but can also include conditions of no contact whatsoever, as well as not to approach or attempt to locate the aggrieved. Orders will be made after consideration of all the circumstances of the case including the kind and extent of the domestic violence and the protection requirements of the victim.
In order to avoid the expense and aggravation of a trial, there are options for parties to settle the matter. One such option is for the aggrieved person to accept an “undertaking” by the respondent in lieu of the Court making a formal order.
An undertaking is essentially a promise by the respondent to the aggrieved to be of good behaviour and not to commit domestic violence. The undertaking will need to be signed by the respondent and can contain other promises including not to approach the aggrieved, not to contact the aggrieved or not to go near him or her, depending on the circumstances.
If the aggrieved chooses to accept an undertaking, the magistrate will place the undertaking on the Court file, the private application will be dismissed and the matter will come to an end. The Court will make no finding about whether or not domestic violence was actually committed by the respondent, no formal order will be made and there will no trial.
What is the difference?
An undertaking does not provide a victim with the same legal protection as a formal Court order, which is a substantial difference that needs to be considered before accepting one. If a person accepts an undertaking and the respondent breaches it and commits domestic violence again, the aggrieved person must start the prosecution of the respondent again themselves through the Magistrates Court. If the respondent breaches a condition of a protection order or commits domestic violence again, the aggrieved person can contact the police. The police can then charge the respondent with a breach of an order, which is a criminal charge. If a respondent breaches an order multiple times, the penalty usually increases with each charge and the penalties can be severe.
The benefit of accepting an undertaking is the aggrieved person does not need to continue to prosecute their application and risk an order not being made after a trial, however, an undertaking does not give the same legal protection as an order.
If safety from actual physical or threatened violence is a genuine concern held by the aggrieved person, then an undertaking may not provide suitable protection and it may be best for the aggrieved person to continue to prosecute their application so that an order is made.
Anyone who is seeking protection from domestic violence is urged to contact an experienced lawyers to discuss their options and the best path forward to obtain that protection.