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December 16, 2014
Undertakings in Violence Restraining Order Proceedings

By Samantha D’Silva

The process of applying for or defending a violence restraining order (“VRO”) or misconduct restraining order (“MRO”) is difficult.

Parties must deal with court procedures and consider the legal basis of their claim, in addition to dealing with the other party.

Parties may not have the finances, or emotional ability to progress the matter to a final order hearing (i.e. a trial). In some circumstances parties may not have sufficient evidence to support their application for a VRO.

Often parties are encouraged to explore whether the VRO or MRO can be resolved by way of an Undertaking.

The difficulty is, many parties do not know what an Undertaking is, what an Undertaking entails and what protection an Undertaking offers them.

What is an Undertaking

An Undertaking is a promise to the Court by a party (or both parties), in which they promise to act in a certain manner, or refrain from acting in a certain manner.

For example, an Undertaking may involve one party promising not to communicate with another party, or approaching another party. The terms of the Undertaking may be similar to the terms of the VRO/MRO.

The Undertaking, if agreed upon by both parties, replaces the VRO or MRO and will end the proceedings in relation to that VRO or MRO.

Parties must carefully consider their rights and obligations before entering into an Undertaking and legal advice is recommended.

What does an Undertaking entail?

An Undertaking must be agreed upon by both parties – i.e. the person applying for the VRO/MRO and the person defending the VRO/MRO.

The Undertaking may be written or oral, though written Undertakings are more appropriate in most circumstances.

The Undertaking will set out the terms of the agreement between the parties, and must be specific enough to avoid any doubt.

The parties will need to provide a signed copy of the Undertaking to the Court.

An Undertaking may be made at any time before a decision is made by a Magistrate at a Final Order Hearing.

Often parties will negotiate Undertakings at interim hearings (i.e. the Court hearings before the final order hearing).

An Undertaking may impose obligations on one party, or both parties (i.e. a Mutual Undertaking).

An Undertaking will usually be in place for a period of 2 years; however the length of the Undertaking may be negotiated by the parties.

What protection will an Undertaking offer?

An Undertaking is a promise to the Court, not a Court Order.

The breach of an Undertaking will not constitute a criminal offence in itself (though what a party does to cause the breach may be a criminal offence).

It is important to note that if a party breaches an Undertaking, the other party may consider reapplying for a VRO/MRO. That party may cite the breach of the Undertaking as one of the grounds for the application.

The Court takes a dim view of parties breaching Undertakings.

It is important however to carefully consider whether an Undertaking is appropriate in your situation. In doing so you will need to consider:

The risk of abuse from another party

Whether the other party is likely to comply with the Undertaking

If you are the person defending the VRO/MRO, whether the application against you is likely to succeed, and

If you are applying for the VRO/MRO, whether you have sufficient evidence to obtain a final VRO/MRO.

Should you require further information or advice regarding a VRO, MRO or an Undertaking, contact Samantha D’Silva of LB&H on sdsilva@lbandh.com.au