When parties separate sometimes a person is requested to give an undertaking that they will or will not do something. Sometimes undertakings are requested before court proceedings are commenced and sometimes they are requested or provided to the Federal Circuit Court or Family Court once court proceedings have commenced. Undertakings are often requested or provided to deal with issues of risk in parenting or property settlement proceedings.
What is an undertaking?
Entering into an undertaking is like making a promise to the court and will be treated as if it were an order of the court.
How can an undertaking be made?
An undertaking is generally made in writing but on occasion when a matter is in the Federal Circuit Court or Family Court, can be given orally.
Examples of an undertaking a person may enter into include:
- property settlement proceedings – an undertaking in property settlement proceedings can be made so that a person will not dispose of a particular asset or will not do something to cause the person’s assets to decrease in value or their liabilities to increase; or
- parenting matters – an undertaking in parenting matters can be made for various reasons including:
- that they will return a child at a particular time or in accordance with a particular arrangement;
- that they will not expose children to a particular person or behaviour;
- that they will supervise the time between a child and a person if there is an allegation that someone is at risk.
What if I fail to comply with an undertaking?
Failure to comply with an undertaking (which is known as a breach of an undertaking) can have serious consequences, and will be treated as if it were a breach of a court order. The penalty for breach of an undertaking can range from a costs order to a period of imprisonment. It is therefore important to obtain legal advice prior to entering into an undertaking.