Undertakings in restraining order applications
An undertaking is a promise to the court that is given by the respondent (or a person bound by an interim restraining order) that they will not do certain things. They can be used to end restraining order applications before the court makes a decision at a final hearing.
As part of the undertaking, the parties must agree that the application for the restraining order will be dismissed by the court, and any interim Family Violence Restraining Order (FVRO) or Violence Restraining Order (VRO) will also be cancelled by the court. An undertaking can include an agreement about paying legal costs involved with the application.
Both parties in a restraining order case must freely agree to an undertaking, what it says and how long it lasts for. The terms of an undertaking are normally similar to what would be included in a restraining order, but the parties are free to agree on restrictions that suit their situation. Undertakings can include agreements about children or property, but they are not a substitute for Family Court property or parenting orders.
Undertakings are recorded on the court file, but are not a court order, and are not enforceable by the police or the courts.
You should get legal advice before you offer or agree to an undertaking.
This information will help you to understand how undertakings can be used in restraining order cases. Find out:
- when undertakings can be used
- how an undertaking is made, and
- what happens if an undertaking is breached.
When are undertakings used?
Undertakings are used when both parties want to end a restraining order case without having any more court hearings. They can be used at any time before a magistrate gives a decision about whether or not to make a final order.
Undertakings are often used in applications for Misconduct Restraining Orders, as well as in FVRO and VRO cases if the respondent has objected to an interim order becoming a final order. Giving an undertaking to the court does not mean you agree you have done anything wrong.
Undertakings can be used in any case where the parties think that having an undertaking to the court is better than continuing the court case to get a decision about a final order. This can include situations where:
- the parties want to avoid the additional financial and emotional costs involved with a final order hearing
- it is not clear what the magistrate will decide at a final order hearing, because of the circumstances of the case and the evidence each person has to support their argument
- the restraining order may have an impact on someone’s employment, or
- both parties have applied for a restraining order against the other.
It is possible for the parties to an application to each offer an undertaking to the court as part of having the application resolved without having a final order made.
How is an undertaking made?
If both people agree on what the undertaking says, the respondent will give the undertaking to the court. The best way is to give the court a written undertaking that both people have signed, but it can also be said out loud in court. The court keeps the signed undertaking on the court file and gives each person a copy. An oral undertaking is recorded on the court transcript.
Once an agreed undertaking has been given to the court, the court will dismiss the application for the restraining order and cancel any interim FVRO or VRO that is in place.
You can view an example of an undertaking.
What happens if a person breaks an undertaking?
Unlike breaching a restraining order, breaking an undertaking is not itself a criminal offence.
If the respondent breaks their undertaking, you can still call the police. Depending on what happened, the police might be able to issue a police order against the person, or charge them with a criminal offence if what they did is against the law.
If you think the respondent has broken their undertaking, you could go back to court and apply for a new restraining order. As a promise voluntarily given to a court, the court expects that the undertaking will be kept. The fact that the respondent has broken an undertaking can be considered as part of the reasons for why a restraining order should now be made.
Reviewed: 1 May 2020