Artificial Intelligence (AI) platforms such as ChatGPT and Microsoft Co-pilot are becoming increasingly popular tools for simplifying legal concepts, summarising documents and increasing efficiency and accessibility to legal processes.
However, there are some important risks to using AI in legal proceedings that all court users should be aware of. Recognising these risks, the Federal Circuit and Family Court of Australia (‘the Court’) has recently released a new Practice Direction, governing the use of AI in court proceedings.
Can AI be used in Family Law Matters?
Yes. The Practice Direction does not prohibit the use of AI but rather outlines a range of principles to ensure AI is being used responsibly.
Whilst there are risks in relying on the use of AI generated material in court proceedings, the Court recognises that AI can still be a useful tool if utilised responsibly and in a way that maintains confidence in the courts.
For example, AI may assist with:
However, it is important to ensure that AI is viewed as a tool, rather than a substitute for legal advice or independent judgment.
Key Principles of the Practice Direction:
The Practice Direction requires AI to be used in a responsible and careful manner. This includes ensuring that:
Who Does the Practice Direction Apply to?
The Practice Direction applies to:
This means that even if you are representing yourself in a family law matter, the court expects you to comply with the principles contained in the Practice Direction regarding the responsible use of AI.
Accountability for the use of AI
One of the most important take aways from the new Practice Direction is that responsibility for the accuracy of court documents remains with the person who files them, regardless of whether AI was used.
Court users have a fundamental duty not to mislead the Court, or the other parties and lawyers involved in the proceeding. AI has limitations, and may produce content that is believable, but inaccurate, wrong or misleading. Relying on AI generated material is not an excuse if information is incorrect. It is therefore important that court users comply with the key principles of the Practice Direction.
Confidentiality & AI
Family Law matters often involve highly sensitive information about children, finances, family violence and personal relationships. For this reason, court users must exercise caution when using AI tools for their family law matter.
The Practice Direction specifically warns against uploading confidential information or court documents into publicly available AI systems as information entered into these systems may be stored, processed or used in ways that are outside the user’s control.
This is particularly important because section 114Q of the Family Law Act 1975 makes it a criminal offence to communicate to the public information from family law proceedings that identifies a party, witness or another person involved in the proceedings, unless an exception applies. As a result, uploading court documents or information obtained through court processes into public AI platforms may create significant legal and privacy risks.
In practice, this means that there is only a very limited scope for using AI in family law matters. Unless you are using a secure, closed AI system that appropriately protects confidential information, you should not input court documents or any information obtained through court processes into an AI tool. Even when using a closed system, only non-confidential information should be entered.
If you are unsure whether information can safely be entered into an AI platform, it is always best to seek legal advice first.
Does AI Use Have to be Disclosed to the Court?
No. There is no requirement under the Practice Direction for a court user (other than an expert witness) to disclose the use of AI in the preparation of a document filed or relied upon in a proceeding, unless requested to do so.
Therefore, if asked, court users should be able to explain:
If AI is utilised inappropriately and the new Practice Direction is not complied with, the Court may respond by disregarding material, referring matters to a regulatory body or making costs/other orders.
You can access the new AI Practice Direction through the following link: https://www.fcfcoa.gov.au/pd/pd-ai
Next steps
If you or someone you know wants more information or needs help or advice with their family law matter, please contact our Intake team on (03) 8415 5600 or email us at reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian jurisdiction only. You should obtain professional advice before you undertake any course of action.