Artificial intelligence (AI) is an increasingly important part of our lives. It has pervaded many aspects of society, including family law proceedings. Clients are becoming more interested in how AI can be used to streamline their case. While AI can have a place in legal preparation, it’s important to understand its limitations and the issues that may arise.
Key takeaways
Use of generative AI must be accurate, relevant, and align with court rules.
AI use can cause a number of problems for legal proceedings.
Case studies demonstrate how AI use can impact a party’s proceeding.
Clients using AI tools must understand their obligations to confidentiality and accuracy.
Can AI be used in an Australian family law case?
There are concerns that the rapid pace of AI development is progressing faster than the legal system can account for. To adress this issue, the Federal Circuit and Family Court of Australia (FCFCOA) has provided guidance through its Practice Direction: Use of Artificial Intelligence.
AI-generated content is not strictly prohibited. However, the parties involved in the family law proceedings are responsible for the accuracy and relevance of all information. The use of large language models should also adhere to rules around document length and not breach confidentiality requirements.
What can go wrong with AI evidence or documents?
While helpful, AI-generated material can cause issues in court proceedings. Some potential pitfalls include:
Generative AI tools can cite non-existent court cases and legislation, which may give you a mistaken understanding of how previous rulings apply to your situation.
AI systems can misstate the Family Law Act 1975, or provide outdated information that doesn’t account for the latest amendments.
If you’re using AI assistance, details of your case may be distorted and result in inappriopriate recommendations.
The Uniform Evidence Acts across Australian jurisdictions have strict requirements for the use of relevant and authentic evidence. The Courts also have discretion to exclude evidence. AI-generated affidavits may be thrown out, which can damage your case and result in poor outcomes.
Deepfake technology is becoming more accessible to the public. Unacknowledged AI-generated evidence in the form of photos or voice recordings can result in serious consequences. The Court can make an adverse finding against you and apply cost orders.
Confidential information may be used as training data by AI tools and appear in AI outputs. This is a serious breach that can destroy your case.
What have Australian family law cases said about AI?
There are several cases that show the risks AI can pose if used incorrectly. Consider the following.
Helmold & Mariya (2025)
A self-represented litigant appealed a parenting order. He generated court document submissions using AI which contained imaginary citations. The appeal was denied because the AI information could mislead the Court, create unnecessary complexities, and waste time. This shows how important responsible AI use is to meet your ethical obligations to the Court.
Mertz & Mertz (No 3) (2025)
Concerns arose about the authenticity of certain court documents after an appeal was discontinued. These included the Summary of Argument and the List of Authorities. The Court found non-existent authorities were cited and inaccurate references to case law. The documents had been settled by the legal practitioners supporting the appellant.
The appellant was ordered to pay the respondent’s costs. The solicitors were also required to pay $10,000 to the respondent to cover the cost of dealing with the AI issue. The solicitors were then referred to regulatory bodies for their conduct. This case shows the importance of legal representatives remembering the legal principle to not mislead the Court.
Tesar & Szep (2026)
A solicitor in the case used submissions that contained false citations. When asked whether the submissions were checked for accuracy, the solicitor insisted they had been. The solicitor was found to have undermined public confidence in the administration of justice and brought the legal profession into disrepute. This led to the solicitor facing disciplinary action.
Clients using AI tools in a family law matter
We want to stress that using AI isn’t prohibited. But it’s crucial to understand your obligations around evidence admissibility and confidentiality. Here are two common issues our clients ask about:
You may use AI to help organise and review an affidavit for a witness. However, you have to be careful that the affidavit only reflects the witness’s knowledge of the situation and maintains their own words. You must not invent or embellish facts or materially change the witness statement.
Uploading any court documents to a program like ChatGPT should generally be avoided. You can easily run into confidentiality concerns that may be detrimental to your case. Documents that shouldn’t be shared with a public AI tool include:
Subpoenaed documents.
Expert testimony.
Digital evidence, such as photographs.
Documents containing information related to children.
Medical records.
Conclusion
Australian courts recognise that AI can help parties manage legal proceedings. But clients should be careful that they don’t breach confidentiality rules or submit false information to the Court. While AI can be useful, it isn’t a replacement for professional advice.
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Disclaimer: This article provides general information only. It is not legal advice. Family law outcomes depend on your circumstances. You should speak with a family lawyer before making decisions about your matter.
