Artificial intelligence is becoming a more common part of legal work, where it may be used to assist with research, drafting or understanding legal information. As these tools become more widely used, questions around accuracy, confidentiality and the way information is handled have become increasingly important.
Those concerns are particularly relevant in family law, where matters often involve highly personal circumstances, complex evidence and sensitive information. Against that background, the Federal Circuit and Family Court of Australia has introduced its first Practice Direction dealing specifically with the use of artificial intelligence. Issued by Chief Justice Alstergren on 29 May 2026, the direction applies to everyone appearing before the Court, including self-represented litigants.
The Practice Direction does not prohibit the use of AI, but it does set clear expectations around how it should be used. Anyone relying on AI-generated material remains responsible for ensuring that what is filed with the Court is accurate, appropriate and properly checked.
Recent cases highlight the consequences of AI misuse
Recent family law decisions have shown that the misuse of AI in Court proceedings can lead to serious professional and financial consequences.
In Tesar & Szep (No 3) [2026] FedCFamC1F 21, a solicitor advocate filed submissions that included false and fictitious case citations generated using AI. The solicitor also gave the Court incorrect information about how the submissions had been prepared, which ultimately led to the matter being referred to the Legal Services Commissioner. The solicitor was also ordered to personally pay some of the legal costs and was prevented from charging the client for certain work connected with the proceedings.
Similar issues arose in Mertz & Mertz (No 3) [2025] FedCFamC1A 222, where AI was used to help prepare documents for a family law appeal. Those documents included incorrect and non-existent case references that then had to be addressed before the Court. The solicitor and barristers involved were referred to their respective legal regulators, while the former solicitor agreed to personally pay $10,000 towards the other party’s costs arising from the errors.
These cases show that the consequences of AI misuse in family law proceedings can extend beyond the document itself, exposing legal practitioners to personal costs and potential disciplinary action.
Confidentiality and the difference between public and closed AI
Family law matters often involve some of the most private information a person will ever have to share. Protecting that information is an important part of the legal process, particularly where disclosure could cause distress or place someone at further risk.
That is why care needs to be taken when using AI tools. Public AI platforms may store, process or reuse the information entered into them, which means confidential material can leave the controlled environment in which it was originally provided. In a family law matter, uploading an unredacted affidavit, financial statement, parenting order or other sensitive document can therefore create serious privacy and legal risks.
Closed AI systems are used within controlled environments where information is kept private and is not generally used to train or improve a public model. That distinction matters because the same family law document may present very different risks depending on the type of AI system being used.
The Practice Direction also reflects the strict protections that already apply to information about family law proceedings. Under Part XIVB of the Family Law Act 1975 (Cth), it can be an offence to communicate information about proceedings to the public where it identifies a party, witness, child or another person involved in the matter. As some public AI tools may retain information or use it in ways that place it outside the user’s control, entering identifying material into one of these systems can create a risk that information is disclosed more widely than intended.
For anyone involved in a family law matter, the key point is that convenience should never come at the expense of confidentiality. Before sensitive information is entered into an AI tool, there needs to be a clear understanding of whether the system is public or closed, where that information may go and how it will be handled.
Affidavits and the importance of authentic evidence
An affidavit is a written statement of evidence that a person swears or affirms to be true and may be relied on by the Court when making decisions. It is intended to reflect that person’s own knowledge, experience and recollection of events.
For that reason, clause 4.9 of the Practice Direction cautions against using generative AI to prepare affidavit material or anything that presents itself as a witness’s evidence or opinion. Using AI to rewrite or polish a client’s account can change more than the wording, as it can remove the specific details, natural phrasing or imperfections that help show the evidence genuinely belongs to that person.
That matters because affidavits can play an important role in family law proceedings and may later be tested under cross-examination. If the wording no longer reflects how the person would naturally describe their own experience, that can raise questions about the reliability of the evidence.
Protecting sensitive information where safety is a concern
Where family violence or safety concerns are involved, the risks associated with AI become even more serious. Clause 3.3(e) makes clear that AI must not be used if doing so could compromise the safety of another Court user or a child.
That can include information such as a protected residential address, details about where a child attends school, a new workplace or the location of support services being accessed. In matters where someone has taken steps to keep that information private, entering it into a public AI tool could undermine those protections and create an additional risk of exposure.
For families already dealing with safety concerns, seemingly ordinary details can carry significant weight.
Where human judgment still matters
For separating couples, AI may be a useful tool for research, drafting and understanding information, but its use in family law requires particular care. Documents filed with the Court can carry significant weight, and responsibility for what is ultimately relied on still sits with the person using it.
The new Practice Direction provides clearer boundaries around where AI can assist and where greater caution is needed, particularly when sensitive information, evidence or a person’s safety is involved.
At Aubrey Brown Lawyers, our Family Law team can help clients understand how these requirements apply to their matter and how to protect their information when using AI tools during the course of proceedings.
Contact our team on 02 4350 3333 or visit aubreybrown.com.au.
