What Is an Undertaking?
If you have been involved in an Intervention Order application, you may have heard the term “undertaking” used in court. An undertaking can sometimes provide an alternative to a final Intervention Order, allowing the matter to be resolved without the Court making an Order against the respondent.
However, an undertaking is not appropriate in every case. Whether one is accepted depends on the circumstances, the views of the applicant, and whether the Court considers an Intervention Order is still necessary to protect the affected person.
At Wilkinson Lawyers, we regularly negotiate undertakings on behalf of clients throughout Ballarat, Melbourne and regional Victoria. In appropriate cases, an undertaking can provide a practical resolution while avoiding the need for a final Intervention Order.
What Is an Undertaking?
An undertaking is a formal promise made to the Court by the respondent to behave in a particular way.
For example, a respondent may undertake:
not to contact the applicant;
not to attend the applicant’s home or workplace;
not to publish material about the applicant;
not to engage in threatening or abusive behaviour; or
to comply with other agreed conditions.
Unlike an Intervention Order, an undertaking is based on the respondent’s promise rather than a court order imposing legally enforceable conditions.
Is an Undertaking the Same as an Intervention Order?
No.
Although an undertaking may contain conditions similar to those found in an Intervention Order, they are very different legally.
An Intervention Order is a court order made under Victorian legislation. If a respondent breaches an Intervention Order, they may be charged with a criminal offence.
An undertaking is simply a promise made to the Court. Breaching an undertaking is not a criminal offence, and police cannot charge someone simply because they have failed to comply with its terms.
However, if an undertaking is breached, the protected person or Victoria Police may apply for an Intervention Order or take other legal action depending on the circumstances.
When Might an Undertaking Be Appropriate?
An undertaking may be suitable where:
the allegations are relatively minor;
there is little ongoing risk;
both parties are prepared to resolve the matter without a final Intervention Order;
the respondent is willing to give appropriate assurances about their future conduct; or
the Court considers that an Intervention Order is unnecessary.
Every case is different, and an undertaking is not available simply because the respondent requests one.
Does the Applicant Have to Agree?
Usually, yes.
In many cases, an undertaking will only be accepted if the applicant agrees to resolve the matter in that way.
In Family Violence Intervention Order proceedings, Victoria Police often act as the applicant on behalf of the affected family member. If police believe that an Intervention Order remains necessary to protect the affected person, they may refuse to accept an undertaking.
Ultimately, the Court must also be satisfied that an undertaking is appropriate in the circumstances.
Does an Undertaking Mean the Allegations Are True?
No.
Offering an undertaking does not amount to admitting the allegations made in the Intervention Order application.
In many cases, respondents offer undertakings simply to avoid the cost, stress and uncertainty of contested court proceedings.
An undertaking should not automatically be interpreted as an acceptance that family violence or prohibited behaviour occurred.
Does an Undertaking Give Me a Criminal Record?
No.
An undertaking is part of a civil proceeding and does not create a criminal conviction or criminal record.
However, if your conduct amounts to a criminal offence independently of the undertaking—for example, assault, stalking or criminal damage—you may still face separate criminal charges.
Can Police Enforce an Undertaking?
Not in the same way as an Intervention Order.
Because an undertaking is not a court order, police cannot arrest or charge someone simply for breaching its terms.
If the respondent behaves in a way that causes ongoing concern, the applicant or Victoria Police may instead apply for an Intervention Order or investigate whether any criminal offences have been committed.
Why Would Someone Offer an Undertaking?
An undertaking can sometimes provide a sensible outcome where ongoing court proceedings are unnecessary.
It may allow the parties to resolve the matter without:
a contested hearing;
a final Intervention Order being made;
lengthy court delays; or
the ongoing restrictions that accompany an Intervention Order.
For some respondents, this can be an attractive resolution where they simply wish to move on with their lives.
Why Early Legal Advice Matters
Whether an undertaking is appropriate depends on the individual circumstances of the case. In some matters, it provides an effective way to resolve proceedings without a final Intervention Order. In others, it may not adequately protect the applicant, or the police may refuse to agree to it.
An experienced Intervention Order lawyer can advise whether an undertaking is likely to be accepted, negotiate suitable wording with the other party, and explain the legal consequences before any agreement is reached.
Speak to an Intervention Order Lawyer
If you have been served with an Intervention Order application, you should obtain legal advice before deciding whether to offer an undertaking or contest the allegations.
At Wilkinson Lawyers, we regularly negotiate undertakings and represent both applicants and respondents in Family Violence Intervention Orders and Personal Safety Intervention Orders throughout Ballarat, Melbourne and regional Victoria.
If you would like advice about whether an undertaking is appropriate in your case, contact Wilkinson Lawyers today for confidential legal advice.
Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.
