What is an ‘Undertaking’?

What Is an Undertaking?

If an intervention order application has been made against you in Victoria, you may be served with an interim intervention order and required to attend court for the matter to be heard. The proceeding can be resolved in a number of ways, including by contesting the application, consenting to a final order, or by proposing an undertaking.

An undertaking is a formal, voluntary agreement made between the respondent and the applicant. It is signed by both parties and filed with the court. By entering into an undertaking, the respondent agrees to comply with certain conditions , most commonly, conditions requiring no contact with the applicant or no attendance at particular premises.

An undertaking is not a court order. It does not require the agreement of the court to make, only the agreement of both parties. Unlike a Final Family Violence Intervention Order, an undertaking is a consensual arrangement and cannot be imposed on either party without their consent.

Intervention Order Versus Undertaking

Understanding the difference between a Final Family Violence Intervention Order and an undertaking is important before deciding which option to pursue.

Final Family Violence Intervention Order

A Final Family Violence Intervention Order is a court order made under the Family Violence Protection Act 2008 (Vic). It is made by a magistrate and requires the respondent to comply with conditions protecting the affected family member. Having a Final Order made against you is not a criminal conviction in itself , it does not appear on your criminal record simply because an order was made.

However, breaching a condition of a Final Family Violence Intervention Order is a serious criminal offence under s 123 of the Family Violence Protection Act 2008 (Vic), carrying a maximum penalty of 240 penalty units or two years imprisonment, or both. Where the breach is accompanied by an intention to cause physical or mental harm to the protected person, or an intention to cause the protected person to fear for their safety, the offence under s 123A carries a maximum penalty of 600 penalty units or five years imprisonment, or both. 

A pattern of repeated breaches , contravening an order or family violence safety notice on at least three occasions within a 28-day period , constitutes a persistent contravention under s 125A of the Family Violence Protection Act 2008 (Vic), also carrying a maximum penalty of 600 penalty units or five years imprisonment, or both. 

Undertaking

An undertaking operates differently. It is a voluntary agreement between the respondent and the applicant, not a court order. If the respondent breaches the conditions of an undertaking, that breach is not a criminal offence. Police cannot arrest or charge you for breaching an undertaking in the same way they can for breaching an intervention order.

However, a breach of an undertaking is far from without consequence. A breach will be directly relevant to any future application for an intervention order and will make it significantly easier for the applicant to establish that an order is necessary and appropriate. Courts will take a breach of an undertaking seriously when considering a subsequent application.

When Is an Undertaking Appropriate?

An undertaking may be a preferred option in circumstances where:

• Both parties agree that contact should cease, but the applicant does not require the protection of a court order backed by criminal sanctions for breach
• The respondent does not accept the allegations in the intervention order application but wishes to resolve the matter without a contested hearing
• The risk of a criminal conviction if there is a breach is considered disproportionate to the nature of the relationship and the circumstances
• Both parties have independent legal advice and have reached an agreement that reflects the genuine interests of both

An undertaking is generally not appropriate where there is an ongoing risk to the safety of the applicant that requires the protection of a court order with criminal consequences for breach. In those circumstances, a Final Family Violence Intervention Order is the appropriate mechanism.

It is important to understand that an undertaking requires genuine agreement from both parties. It cannot be imposed on an unwilling applicant.

How Is an Undertaking Arranged?

Because the parties to an intervention order matter are often in a fraught relationship , and because there is frequently an interim intervention order in force restricting contact between them , it is generally preferable for negotiations about an undertaking to occur between the parties’ lawyers rather than between the parties themselves.

The process involves:

1. Negotiating the conditions , the parties, through their lawyers, agree on the conditions that will be included in the undertaking. These typically mirror the conditions of the interim intervention order that has been in force, but can be tailored to the specific circumstances of the parties.
2. Drafting the undertaking , a formal document is prepared setting out the agreed conditions. This document must clearly identify both parties and set out the conditions in precise terms.
3. Signing , both parties sign the undertaking document.
4. Filing with the court , the signed undertaking is filed with the court. Once filed, the intervention order application is withdrawn by consent, and any interim intervention order that has been in force ceases to have effect.

What Conditions Are Typically Included?

Undertakings commonly include conditions such as:

• No contact with the applicant, directly or indirectly
• No attendance at specified premises, including the applicant’s home or workplace
• Conditions relating to the care and living arrangements of any children
• Conditions relating to the applicant’s personal property

The conditions are a matter of negotiation between the parties and should reflect what is genuinely agreed and what is practically achievable.

Undertakings and Legal Representation

Given the legal consequences of breaching an undertaking , even though breach is not a criminal offence , and the importance of getting the conditions right, it is strongly advisable for both parties to have independent legal representation before entering into an undertaking.

For the respondent in particular, agreeing to an undertaking has long-term implications. If the undertaking is breached, even inadvertently, the applicant will have a strong basis for a future intervention order application. The conditions should be realistic and ones you are genuinely able to comply with over time.

Doogue + George Defence Lawyers have extensive experience representing respondents in intervention order matters and in drafting and negotiating undertakings.

Frequently Asked Questions