Court Orders Versus Undertakings

Protection for victims of domestic abuse.

In the case of domestic violence, and an application under the Family Law Act (1996) a court can make an occupation order restricting or allowing exclusive access to either party to a co-owned party or a non-molestation order to protect the victim. Alternatively, a court can accept an undertaking from the alleged perpetrator to refrain from the restricted activities, in the identical terms to the order being applied for. However, the court will not always accept undertakings if it appears to the court that the respondent has used or threatened violence against the applicant or relevant child and it is necessary to make an order for their protection so that any breach is punishable by a FULPLQDO RಀHQFH

Undertaking

$Q XQGHUWDNLQJ LV GHࡼQHG DV a legal promise to the court to do, or refrain from doing, something, which is binding upon the person making it. It is not an admission of liability but a solemn promise to refrain from doing something in the future. Once an undertaking has been made it can carry the same restriction as an occupation or nonmolestation order.

Unlike an order, an undertaking can only be made with the consent of the party making it, whereas an order can be imposed on the alleged perpetrator if not made with the consent of both parties.

The form of an undertaking must be signed and carries with it a formal warning setting out the consequences of disobedience. It is however important to note that the process of enforcement of an

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enforcing an order.

It can be harder to enforce an undertaking. Breach of an undertaking is a contempt of court punishable by committal but it is not a

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an undertaking the applicant has to lodge an application for contempt of court. Within this the provisions of the undertaking which it is alleged have been disobeyed

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There will be a hearing and the alleged perpetrator of the breach is entitled, but not obliged, to give written and oral evidence in their defence.

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the alleged perpetrator to be in contempt of court and in breach of the undertaking, the court may punish by

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punishment under the law.

Non-Molestation Order

Alternatively, breaching the terms of a non-molestation order is automatically a

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lead to a criminal record and

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for which the potential consequences can be severe. The most severe penalty for breaching a non-molestation order is a maximum sentence of 5 years in prison. This substantial prison term shows

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serves as a strong deterrent

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If the respondent does anything prohibited by the order without reasonable excuse it is a criminal

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Enforcing the order can be implemented by reporting this breach to the police to start the criminal process. Alternatively, you can seek remedies in the family court which made the order.

If this is returned to the family court which made the order, several outcomes are possible:

• The arrest of the

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• The imposition of sanctions by way of a

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• Additional Protection for the victim

• Counselling or Rehabilitation

This publication is a general summary of the law. It should not replace legal advice tailored to your VSHFLࡼF FLUFXPVWDQFHV