Many restraining order matters in Western Australia are resolved without a contested final order hearing. The two main ways are an undertaking — a promise to the court that is not legally binding — and a conduct agreement order, which is legally binding but made without any admission of wrongdoing. Both can give the protected person reassurance while sparing everyone the stress, cost and uncertainty of a trial. This guide explains how each works and how to choose.
Key facts at a glance
- Undertaking: a promise to the court to behave (or not behave) in certain ways; not legally binding; no criminal penalty for breaking it
- Conduct agreement order: a legally binding order with the same legal effect as an FVRO; breaching it is a criminal offence; made without any admission
- Consent without admissions: you can agree to an order without accepting the allegations are true
- Both avoid a trial: less stress, cost and uncertainty for both sides
- Terms can be negotiated: the conditions can often be tailored by agreement
Why resolve without a hearing?
A contested final order hearing puts the allegations to the test in open court, with evidence and cross-examination. It takes time, costs money, and the outcome is never certain. Resolving by agreement lets the parties move on with clear arrangements in place, and lets a respondent avoid the stigma some associate with a contested FVRO. For applicants, it can deliver protection quickly without having to give evidence.
Option 1: Undertaking
An undertaking is a promise to the court by a party to act in a certain way or to refrain from certain conduct. Key features:
- It usually contains similar restraints to an FVRO (for example, not contacting or approaching the other person).
- It is not legally binding — there is no criminal offence for breaching an undertaking.
- If both parties agree, the undertaking replaces the FVRO application and any interim order.
Because it is not enforceable in the same way as an order, an undertaking suits situations where there is enough trust and goodwill that a formal, enforceable order is not considered necessary.
Option 2: Conduct Agreement Order
A conduct agreement order is a binding order made by agreement, and it is the option respondents most often choose when they want certainty without a trial but the applicant wants enforceable protection. Key features:
- It has the same legal effect as an FVRO, and breaching it is a criminal offence carrying the same penalties as breaching an order.
- It is made without any admission that the respondent committed family violence.
- The terms can be negotiated between the parties, subject to the court's agreement.
Undertaking vs Conduct Agreement Order: which is right?
| Feature | Undertaking | Conduct Agreement Order |
|---|---|---|
| Legally binding? | No | Yes |
| Breach is a criminal offence? | No | Yes (same as an FVRO) |
| Requires an admission? | No | No |
| Replaces the FVRO application? | Yes, if both agree | Yes — it becomes the order |
| Best suited to | Lower-risk situations with some goodwill | Situations needing enforceable protection without a trial |
Consent without admissions explained
A common worry for respondents is that agreeing to an order means admitting the allegations. It does not. Both an undertaking and a conduct agreement order can be entered into without admitting the conduct alleged. You are agreeing to the future arrangement, not accepting the applicant's version of events.