An Undertaking is a signed written or verbal statement to the Court which has the effect of making a promise to the Court to do or not do an act. Rule 10.18(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out that unless otherwise ordered by the Court, an Undertaking has the same force and effect as an Order of the Court. Naturally, this means that there could be significant consequences for a party should they breach the terms of an Undertaking they have entered into.

What are the consequences of breaching an Undertaking to the Court?

The consequences available to the Court to impose on a party should that party breach an Undertaking include:

• Being found in contempt of Court and issued with a fine or sentence of imprisonment;
• Having the act unwound, e.g. where a party has Undertaken to not transfer or dispose of property;
• The Court could seek that the party offer up security for good behaviour in the future;
• Where the Family Courts are one of a Court of impressions, the breach of an Undertaking could see your case as a whole having suffering significant detriment.

Why are Undertakings used?

Most commonly, Undertakings are used as a tool to give another party assurance that the party entering into the Undertaking will do or refrain from doing an act. Often this is done before proceedings have been commenced and in an effort to keep the matter out of Court, whereas in the absence of an Undertaking one party may feel it is necessary to commence proceedings so that they can ask the Court to make an Order binding the party to do or refrain from doing that act.

Example scenario 1 – parenting

A mother and father are in the process of negotiating care arrangements for their children, however the father holds concerns that the mother may abscond with the children if he is to facilitate unsupervised time between the mother and the children due to some recent perceived threats that have been made. The father proposes that the mother spend unsupervised time with the children on the basis that she sign a written Undertaking that she will return the children at the agreed time and location.

Example scenario 2 – property

Following separation and while the parties are negotiating their property settlement, the wife becomes concerned that the husband is going to begin selling off shares, which she is proposing to retain as part of her property settlement. The wife asks the husband that he enter into an

Undertaking to not sell the shares without her agreement, so that the parties can continue to negotiate without intervention of the Court.