After you have been granted an interim Family Violence Restraining Order (FVRO), your ex-partner (known as the Respondent), may object to Order.
In attempting to resolve the matter without a restraining order, the Respondent, their lawyer, or the Court may suggest the Respondent enter into an Undertaking. This means removing the restraining order and replacing it with an Undertaking.
Understanding an Undertaking
An Undertaking is a promise to the Court that the Respondent will refrain from behaving in a certain way. This is usually in the same terms as the restraining Order but can be amended to be any terms agreed by the party. Both parties must agree to the Undertaking as the Court cannot order an Undertaking.
Undertakings are recorded on the court file, but they are not binding or enforceable as a court order. This means that should the Respondent breach the Undertaking, they cannot be charged with a criminal offence.
A person who breaches an FVRO can be arrested and charged with a criminal offence. If convicted of the breach, they can be fined or imprisoned. There is also a mandatory imprisonment period should a person be convicted of breaching the restraining order more than three times.
An Undertaking, therefore, offers very little protection or deterrence. While the Court takes the entering of an undertaking seriously and expects the Respondent to abide by their promise, the Respondent can continue to behave in a way that is against the Undertaking but not against the law. This can include actions such as continual text messages or being within a certain distance of you.
The pros and cons of an Undertaking
Due to an Undertaking not providing any enforceable protection, they are not strongly recommended. To evaluate the pros and cons are as follows:
Pros of an Undertaking
- An Undertaking may be suitable if your case for an FVRO is weak and you are unlikely to obtain it. Having an Undertaking will give you some protection rather than having nothing in place
- An Undertaking resolves the FVRO matter. If the thought of a final hearing and going to Court is too daunting, An Undertaking will settle the issue without this stress. The FVRO process can be stressful and complicated; however, a final FVRO will offer much more protection and is worth pursuing. We recommend you use a lawyer to alleviate the stress and see a counsellor to help you through the process
- You can still call the police for breach of an Undertaking, and they may issue a police protection order also known as a ‘move on’ notice
- A breach of an Undertaking can be evidence to support the need for an FVRO and making another application
Cons of an Undertaking
- Undertakings are unenforceable, and there is no criminal repercussion for breaching them. The criminal consequences are usually a good deterrent for an ex-partner to leave you alone. Even if the Order is breached once, pursual with the police is a strong deterrent
- You may end up having to go back to Court for an FVRO if your ex-partner breaches the Undertaking, potentially delaying a court hearing in the future regardless
- An FVRO can finally give you the peace and safety you need to start moving on. An undertaking is unlikely to provide this