Undertaking

Under rule 10.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, unless the court orders otherwise an undertaking to the court has the same force and effect as an order. A written undertaking must be signed by the person or their legal representative and filed. An oral undertaking given in court must be recorded in writing, signed, filed within 14 days and served within 14 days. An undertaking can be given in place of an order, as a promise to do, or not to do, particular things. Breaching an undertaking may be a contempt of court punishable by fine or imprisonment, as the form warns.

When you need it

• You have agreed, or the court has accepted, that you will give a promise to the court instead of an order being made against you.
• You gave an undertaking orally in court and need to put it in writing for filing and service within 14 days (r 10.18(4)).
• For the undertaking about disclosure that every party must give, use the separate Undertaking as to disclosure form.

1. 1

   Heading

   Mark the court and give the file number and the court date and time the undertaking relates to.

2. 2

   Parts A to C: parties and the person giving it

   Give the parties' names, any independent children's lawyer, and the name and address of the party giving the undertaking.

3. 3

   Part D: the undertaking

   Write each promise clearly and precisely, numbered, so it is obvious what you must or must not do. State the date until which you are bound, or that it continues until you are excused by the court.

4. 4

   Acknowledgment and signatures

   Read the acknowledgment: the terms have been explained, you promise to comply, it has the same effect as an order, and breach may be contempt. Sign and date it with a witness, who also signs and prints their name.

5. 5

   Part E: lawyer's certificate

   If you have a lawyer, they certify that they explained the nature and effect of the undertaking. If you have not signed, the lawyer gives it on your behalf.

• eFile the signed undertaking on the Commonwealth Courts Portal; if you cannot eFile, file at a registry.
• Serve a copy on the other party or parties by ordinary service.
• If the undertaking was given orally, the written record must be filed and served within 14 days (r 10.18(4)).

• Make sure you understand every term before you sign. An undertaking is enforceable like an order, and a breach can be punished as contempt.
• Vague wording causes disputes. Specify places, distances, property, amounts and dates.
• An undertaking as to damages has a particular meaning under r 10.18(5); get advice if one is asked of you.