Enforceable Undertaking vs Final Protection Order

Undertakings and Protection Orders in Queensland: What You Need to Know

Domestic and family violence is a serious issue, and the law in Queensland provides several pathways to protect people who are at risk. One option that sometimes arises is accepting an undertaking from a respondent in a domestic violence application. But what does that mean and what are the risks and trade-offs when choosing an undertaking rather than pursuing a formal protection order?

What is an Undertaking?

An undertaking is essentially a promise by the respondent (the person alleged to have committed violence or threats) to the aggrieved and to the court. It involves the respondent doing (or refraining from) certain things, such as behaving in a certain way, not contacting the aggrieved, or staying away from places such as their residential house.

An undertaking is not a court order and is not considered a protection order.

An undertaking is an agreement that is an alternative resolution to a Final Protection Order. If the respondent enters into an undertaking, often in return, the aggrieved will agree to withdraw their application for a protection order before the Courts.

This is often to the advantage of the respondent as a Magistrates does not hear and determine the facts of the case. Thus, there are no formal findings about the respondent culpability and whether they have acted poorly.

An undertaking cannot be enforced by police or the Courts. A breach of the undertaking or it’s conditions is not a criminal offence, however any breach may potentially be considered by the Court in any future proceedings

However, an undertaking will form part of the Court file.

How an Undertaking Works in Queensland: Step-by-Step

Offer and Negotiation:

An offer is made by one party to another seeking for an undertaking to be entered and for the application to be withdrawn. The parties must negotiate the conditions of an undertaking and duration. Usually, an undertaking will state the promise is made by ‘consent without admissions’.

Court Notification:

Once an agreement is reached, the Court must be informed and the application formally withdrawn. If the matter was listed for a hearing, this will be delisted and there are no further legal proceedings.

Temporary Protection Order (TPO) Impact:

If a Temporary Protection Order was granted, it will no longer be in place upon the application being withdrawn.

Filing the Undertaking:

The undertaking is filed and kept on the Court file and perhaps the police file if they were a party to the proceedings.

Future Considerations:

If there is a further application or investigation, the police, Courts or parties may inform themselves of the undertaking and its conditions.

Implications & Risks of Accepting an Undertaking

Accepting an undertaking may seem like a simpler or less adversarial approach than a full court order. However, there are important implications to consider, both practical and legal as follows:

1. Enforcement:

If the respondent breaches the undertaking, there is no criminal penalty for a breach of the undertaking itself. The aggrieved cannot rely on police to enforce the undertaking in the same way they can enforce a protection order.

2. Safety:

Because there is no formal order, if violence or threats continue, the protections may be weaker. The aggrieved may need to refile an application for a protection order if the undertaking is not complied with. An undertaking may also empower a respondent as the police and legal system were informed of the offending and withdrew the application.

3. Later proceedings:

A breach of the undertaking can be used as evidence in a future application for a protection order. This can help show the necessity or desirability of formal protection. Equally, the respondent may show the aggrieved has history of making numerous unfounded applications that are an abuse of process.

4. Consent without admissions:

Because it is not a finding of fact, the respondent is not formally found to have committed domestic violence. This can be a matter for reputation, related legal proceedings, or other collateral consequences (e.g. in family law, employment or weapons licensing).

When Might Accepting an Undertaking Be Appropriate?

While there are risks, there are also scenarios in which an undertaking might be considered:

For Less Severe Alleged Violence or Low Risk of Breach

When the alleged violence is less severe, or there is a belief that the respondent is unlikely to breach any conditions.

When Seeking a Faster, Less Contentious Resolution

Where the aggrieved is seeking a quicker, less contentious resolution, perhaps to avoid court, delays, or costs. Or perhaps there is an issue with their filed evidence.

To Avoid Court Stress, Trauma, or Reputational Impact

When the aggrieved wants to avoid the trauma or stress of a hearing or a finding, especially if there are children, career, or reputational concerns.

When Some Mutual Agreement or Informal Safety Measures Exist

Possibly when the parties have some level of mutual agreement/trust, or when other informal safety arrangements exist.

Why a Protection Order (DVO) Might Be Better

A formal domestic violence protection order (DVO) offers stronger, more reliable protections than an undertaking. Protection orders are often preferred because:

Legally Enforceable: A DVO can be enforced by the police. If breached, the police can act, and criminal penalties may apply;
Court Findings Provide Clarity: The court may make formal findings, which contribute to an evidentiary history for any future legal proceedings.
Tailored Safety Conditions: Courts can impose enforceable safety conditions, such as no contact orders, distance restrictions, and exclusion zones, designed to protect the aggrieved; and
Formal Recourse for Breaches: A DVO provides clear consequences if the respondent breaches the order, holding respondents accountable and potentially encouraging personal insight or remorse. This also creates a wider deterrent effect and sets public expectations of acceptable behaviour.

Key Considerations Before Accepting an Undertaking

Before agreeing to an undertaking, an aggrieved person (or their lawyer) should consider:

Safety first: What is the current risk? Are there safety plans or other supports?
Likelihood of compliance: What is the history of behaviour? Is the respondent in a situation where they are likely to comply (or be monitored)?
Legal advice: It’s essential to get advice about whether the undertaking will meet your protection needs, and whether stronger measures (e.g. DVO) are necessary.
Documenting everything: Ensure that the undertaking is clearly written, signed, and that its terms are precise (e.g. distance, contact restrictions).
Future options: Understand that the undertaking does not close off the possibility of seeking a protection order later, especially if the undertaking is breached. Evidence of a breach may strengthen the future proceedings .

Conclusion: Undertakings vs Domestic Violence Protection Orders in Queensland

Accepting an undertaking in a domestic violence application in Queensland can seem appealing: it may be quicker, less confrontational, and may avoid the trauma or cost of a court hearing. However, because an undertaking is not a protection order, its enforceability is limited, and it carries risks, especially if the respondent does not comply.

For many aggrieved persons, a Domestic Violence Order remains a safer bet, especially where there is ongoing risk. At Elysian Law, we strongly advise clients to get tailored legal advice. Understanding your rights, the nature of the risk, and your long-term protection goals is crucial before deciding whether an undertaking is appropriate

For practical advice on domestic violence protection orders, legal defences, and their implications, check out these related articles from Elysian Law:

At Elysian Law, we understand the profound impact these issues can have on both your personal and professional life. Our team is committed to providing expert legal guidance tailored to your unique needs.

Supportive Services

If you or someone you know is struggling with the impact of domestic and family violence proceedings, the following Australian services provide support and guidance:

1800Respect – Confidential counselling for domestic and family violence.

Lifeline Australia – 24/7 crisis support
MensLine Australia – Support for men dealing with stress, family issues, or domestic violence concerns.