They say that a good compromise leaves everyone unhappy. That does not always have to be the case. Compromising in Restraining Order matters is called reaching a settlement, or settling the matter.

Generally speaking, if a matter settles this means that the matter does not proceed to a trial or further litigation before the Court. In the context of a Family Violence Restraining Order, this is typically done in one of two ways.

Undertaking

An Undertaking is a promise by one person to another, that they will behave or act in a certain way. Most Undertakings are prepared in terms that largely mirror the interim FVRO, with tweaks or amendments agreed by the parties to facilitate their lives continuing as normally as possible – such as permitting handover of children, collection of personal belongings, or communication in limited circumstances such as property sales.

An Undertaking must be agreed between the parties – usually offered by the Respondent as a means to settle a matter, and accepted by the Applicant.

An Undertaking is not enforceable at law, meaning that if it is breached, the Police cannot charge the offender with a Breach of Restraining Order charge.

If an Undertaking is breached, however, the person against whom it was breached (i.e. the victim) can return to Court immediately and usually be granted a new interim FVRO, which provides a higher level of legal protection and peace of mind to them.

An Undertaking can be unilateral, or mutual – meaning that both parties can agree to abide by the same conditions. Mutual Undertakings are usually used in circumstances where there are cross-applications brought between the parties.

On the basis of an Undertaking being agreed, the Court will dismiss the FVRO proceedings, usually retaining a copy of the Undertaking for their file.

Undertakings are usually agreed on a no-admission of liability, no-costs basis, meaning that no one is admitting they have done anything ‘wrong’, and each party bears their own costs. Undertakings are usually viewed as a first step in settlement of FVRO matters, a cost-effective and convenient way to allow the parties to each go their separate ways without the need to incur further costs and the emotional expense of a trial.

Conduct Agreement Order

A Conduct Agreement Order is, for the purposes of enforcement, deemed to be a Restraining Order. They are legislatively provided for in section 10H of the Restraining Orders Act 1997, and agreement to enter into one is usually on a no-admission basis, meaning that the person subject to the Order is not admitting any wrong doing.

A Conduct Agreement Order usually largely mirrors the terms of an interim order. The benefit of negotiating a Conduct Agreement Order is that both parties can have input as to the terms of the Order, meaning that it is usually a more workable and flexible document that the interim FVRO.

In most cases, a Conduct Agreement Order is agreed between the parties, with both parties providing input and proposals to craft a workable and agreeable document. However, at law, it does not necessarily have to be agreed between both parties. A Respondent can agree to enter into a Conduct Agreement Order and discuss duration with the Magistrate hearing the matter. In some limited circumstances, Magistrates have been known to enter the parties into a Conduct Agreement Order for a shorter period of time than the Person Protected is seeking, and against the Objection of the Person Protected.

If a Conduct Agreement Order is breached by the Person Bound, it is deemed to be a Restraining Order for the purposes of enforcement, and Police can charge the breaching party with a criminal offence.

Conduct Agreement Orders are generally considered a stronger and more legally robust settlement, but are also harder to reach agreement on given the potential for criminal charges flowing from any potential breach.

Agreement

When a matter settles by way of an Undertaking or Conduct Agreement Order, it is a requirement that both parties sign the document to indicate their agreement, and retain a copy to refer to.

There are many advantages of settling a matter, primary amongst them being the ability to save time and money, and to avoid the emotional and difficult task of testifying against someone whilst they are in the room, and being cross examined on the stand.

An Undertaking or Conduct Agreement Order can be a useful and convenient way to finalise matters to the satisfaction of both parties.

At Fraser & Associates, we will always raise the possibility of a settlement of a FVRO matter. However, we acknowledge and know from experience that it is not for everyone, and that there is no one size fits all approach to such intimate and important matters as the relationship between family members. Contact us today to confidentially discuss your FVRO matter.