Australia
Attorney General Department (Cth) (2015) Family Law Council Report to the Attorney-General on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems: Interim Report – June 2015 (Terms 1 & 2).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
Australian Law Reform Commission, Family Violence: Improving Legal Frameworks, Consultation Paper No 1 (2010).
Bryant, Diana, ‘The Family Courts and Family Violence’ (Paper presented at the Judicial Conference of Australia Colloquium, Adelaide, 9-11 October 2015).
Conner, Dana Harrington, ‘Civil Protection Order Duration: Proof, Procedural Issues and Policy Considerations’ (2015) 24:2 Temple Political and Civil Rights Law Review 343.
Cordier, Reinie, Donna Chung, Sarah Wilkes-Gillan and Renée Speyer, ‘The Effectiveness of Protection Orders in Reducing Recidivism in Domestic Violence: A Systematic Review and Meta-Analysis’ (2019) Trauma, Violence & Abuse (advance)
Croucher, Rosalind, ‘Family Law: Challenges for Responding to Family Violence in a Federal System’ in Alan Hayes and Daryl Higgins Families, Policy and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014) 207.
Douglas, Heather and Robin Fitzgerald, ‘Legal Processes and Gendered Violence: Cross-Applications for Domestic Violence Protection Orders’ (2013) 36(1) University of New South Wales Law Journal 56.
Dowling, Christopher, Anthony Morgan, Shann Hulme, Matthew Manning and Gabriel Wong, Protection orders for domestic violence: A systematic review (Australian Institute of Criminology Report No. 551 June 2018).
Fitzgerald ,Robin and Heather Douglas, The Whole Story: The Dilemma of the Domestic Violence Protection Order Narrative, The British Journal of Criminology, Volume 60, Issue 1, January 2020, Pages 180–197, https://doi.org/10.1093/bjc/azz043.
Gelb, Karen, ‘Understanding Family Violence Court Proceedings: The Impact of Family Violence on the Magistrates’ Court of Victoria’ (2016) Karen Gelb Consulting.
Jeffries, Samantha et al, ‘Protecting Australia’s Children: A Cross Jurisdictional Review of Domestic Violence Protection Order Legislation’ (2015) 22(6) Psychiatry, Psychology and Law, 800-813.
Jeffries, Samantha et al., ‘Australian Domestic Violence Protection Order Legislation: A Comparative Quantitative Content Analysis of Victim Safety Provisions’ (2013) 25(2) Current Issues in Criminal Justice 627.
Jordan, Carol, Adam J Pritchard and Pamela Wilcox (2008) ‘The denial of emergency protection: Factors associated with court decision making’, Violence and Victims 23(5):603-16, doi: 10.1891/0886-6708.23.5.603
Law Reform Commission of Western Australia, Enhancing Family and Domestic Violence Laws (Final Report 2014).
Mackay, Erin, Althea Gibson, Huette Lam, David Beecham, Perpetrator interventions in Australia: Part one – Literature review (ANROWS, 2015).
Meyer, Silke & Rose Stambe (2022) Increasing compliance with domestic violence protection orders: investing in perpetrator education and support as an investment in victim and family safety, Policing and Society, 32:9, 1071-1086, DOI:10.1080/10439463.2021.2016756
New South Wales Legislative Council Standing Committee on Social Issues, Domestic Violence Trends and Issues in NSW (Report 46, 2012).
Reeves, E. ‘I’m Not at All Protected and I Think Other Women Should Know That, That They’re Not Protected Either’: Victim–Survivors’ Experiences of ‘Misidentification’ in Victoria’s Family Violence System. (2021) 10 (4) International Journal for Crime, Justice and Social Democracy 39-51.
Reeves E (2023) ‘A culture of consent: Legal practitioners’ experiences of representing women who have been misidentified as predominant aggressors on Family Violence Intervention Orders in Victoria, Australia’, Fem. Leg Stud 31:369-390, doi: 10.1007/s10691-022-09506-5.
Roberts, James C, Loreen Wolfer and Marie Mele (2008) ‘Why victims of intimate partner violence withdraw protection orders’, Journal of Family Violence 23(5):369-375.
Ross, S and Aitken S (2022) ‘“If it hadn’t been online I don’t think I would have applied”: Applicant experiences of an online Family Violence Intervention Order process’, Journal of Interpersonal Violence 37(1-2):221-238, doi: 10.1177/0886260520907367
Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
Stambe, R.-M., & Meyer, S. (2022). Police and Duty Lawyer Perceptions of Domestic Violence Protection Order Proceedings Involving Parents: Towards Greater System Accountability and Family-Centred Decision-Making. Journal of Family Violence. https://doi.org/10.1007/s10896-022-00449-8.
Teperski, A and S Boiteux (2023) The long and short of it: The impact of Apprehended Domestic Violence Order duration on offending and breaches (Crime and Justice Bulletin No. 261) Sydney: NSW Bureau of Crime Statistics and Research.
Victorian Royal Commission into Family Violence, (Volume 3, 2016).
Wangmann, Jane, ‘Gender and Intimate Partner Violence: A Case Study from NSW’ (2010) 33(3) University of New South Wales Law Journal 945.
Wilcox, Karen and Ludo McFerran, ‘Staying Home, Staying Safe: the Value of Domestic Violence Protection Order Provisions in Homelessness Strategies’ (2009) 294 Australian Law Reform Commission Journal 24.
Zoellner, Lori et al, ‘Factors Associated With the Completion of the Restraining order Process in Female Victims of Partner Violence’ (2000) 15(10) Journal of Interpersonal Violence 1081.
Key points:
•
Accepting an undertaking may compromise the safety of a victim.
•
Breach of undertakings given to courts are not enforceable (although may be considered an act of contempt).
•
Victim fear of the perpetrator may cause them to feel pressure or intimidation to accept an undertaking and not proceed with their application for a protection order.
•
Family court proceedings may give little or no weight to an undertaking.
•
It is important that a victim understands the implications of accepting an undertaking before agreeing to withdraw their application.
A victim of domestic and family violence seeking a protection order may agree to withdraw their application on the basis that the perpetrator provides an undertaking to the court to do, or refrain from doing, certain things. The undertaking may include the same types of conditions and prohibitions as may be included in a protection order. Undertakings may be given orally or in writing and signed. There may be cases where both parties provide undertakings to the court.
Concerns have been raised about the use of undertakings in domestic and family violence proceedings, including:
•
An undertaking is no more than a promise (made to the court) by the perpetrator to refrain from further domestic and family violence. The perpetrator may have previously broken similar promises made to the victim and others.
•
A victim may feel pressured or intimidated by the perpetrator into accepting an undertaking rather than proceeding with their application for a protection order. This may be due to the victim’s ongoing fear of the perpetrator who may use the court process to continue to exercise control over the victim; or, if the victim is self-represented, a lack of understanding of the process. There may also be pressures on the judicial officer to expedite the resolution of the matter.
•
Unlike a breach of a protection order, a breach of an undertaking is not a criminal offence and is unenforceable (although it may be considered by the court an act of contempt). Accepting an undertaking may therefore compromise the safety of a victim. If an undertaking is breached, and the victim still requires protection, they must return to the court and make a fresh application for a protection order.
It is acknowledged that there may be circumstances where an undertaking is the most appropriate outcome in a particular case. For example:
•
Accepting an undertaking may be the first step a victim is prepared to take in seeking protection against domestic and family violence. Should the violence continue, it may encourage the victim to seek a protection order.
•
Where there is insufficient evidence to support the making of a protection order. A breach of the undertaking may however be evidentiary support in a subsequent protection order application.
Where a judicial officer decides that an undertaking is the most appropriate outcome in a particular case, it is important that the victim understands the consequences of accepting an undertaking, especially where they are self-represented.
Key points:
•
Accepting an undertaking may compromise the safety of a victim.
•
Breach of undertakings given to courts are not enforceable (although may be considered an act of contempt).
•
Victim fear of the perpetrator may cause them to feel pressure or intimidation to accept an undertaking and not proceed with their application for a protection order.
•
Family court proceedings may give little or no weight to an undertaking.
•
It is important that a victim understands the implications of accepting an undertaking before agreeing to withdraw their application.
A victim of domestic and family violence seeking a protection order may agree to withdraw their application on the basis that the perpetrator provides an undertaking to the court to do, or refrain from doing, certain things. The undertaking may include the same types of conditions and prohibitions as may be included in a protection order. Undertakings may be given orally or in writing and signed. There may be cases where both parties provide undertakings to the court.
Concerns have been raised about the use of undertakings in domestic and family violence proceedings, including:
•
An undertaking is no more than a promise (made to the court) by the perpetrator to refrain from further domestic and family violence. The perpetrator may have previously broken similar promises made to the victim and others.
•
A victim may feel pressured or intimidated by the perpetrator into accepting an undertaking rather than proceeding with their application for a protection order. This may be due to the victim’s ongoing fear of the perpetrator who may use the court process to continue to exercise control over the victim; or, if the victim is self-represented, a lack of understanding of the process. There may also be pressures on the judicial officer to expedite the resolution of the matter.
•
Unlike a breach of a protection order, a breach of an undertaking is not a criminal offence and is unenforceable (although it may be considered by the court an act of contempt). Accepting an undertaking may therefore compromise the safety of a victim. If an undertaking is breached, and the victim still requires protection, they must return to the court and make a fresh application for a protection order.
It is acknowledged that there may be circumstances where an undertaking is the most appropriate outcome in a particular case. For example:
•
Accepting an undertaking may be the first step a victim is prepared to take in seeking protection against domestic and family violence. Should the violence continue, it may encourage the victim to seek a protection order.
•
Where there is insufficient evidence to support the making of a protection order. A breach of the undertaking may however be evidentiary support in a subsequent protection order application.
Where a judicial officer decides that an undertaking is the most appropriate outcome in a particular case, it is important that the victim understands the consequences of accepting an undertaking, especially where they are self-represented.