Artificial Intelligence (AI) is rapidly intertwining itself into the structure of everyday life; from drafting emails to preparing legal documents. While the convenience and efficiency of it is undeniable, recent judgments in many jurisdictions in Australia and internationally serve as a unambiguous reminder: legal professionals and self-represented litigants must tread carefully when using AI in court documents.
Some jurisdictions in Australia have now introduced guidelines and rules regarding the use of AI in court documents, such as the Supreme Court of New South Wales. While the Federal Circuit and Family Court of Australia (“the Court”) is yet to introduce a Practice Direction regarding the use of AI, it appears to be only a matter of time as it is beginning to be a feature in several judgments.
Recently, the Court weighed in on this issue in Mertz & Mertz (No 3) [2025] FedCFamC1A 222 again highlighting the risks. In this case, the Court referred three practitioners to their respective disciplinary boards after AI was used to prepare a Summary of Argument and List of Authorities for the hearing. The documents filed contained non-existent, inaccurate and misleading authorities. The practitioners were given an opportunity to submit written explanations, all of which accepted responsibility for the AI-generated content, but each denied personally using AI. Notably, Ms G, one of the solicitors, explained that her paralegal had used AI to “alphabetise the cases in the list of authorities and place them under headings…”.
On the surface, such a task might seem like a harmless use of technology to streamline an administrative task. However, the solicitor did not specify which AI program was used, raising further concerns. The Court’s decision outlined several reasons why this practice is problematic, arguably the most serious being a potential breach of section 114Q of the Family Law Act 1975, other rules of the Court (for example, in relation to subpoena material), or the potential to waive legal professional privilege.
Section 114Q of the Family Law Act is designed to protect the privacy of individuals involved in family law proceedings by safeguarding confidentiality for those involved in such sensitive and personal matters. It makes it an offence to public or disseminate information that identifies parties, witnesses, or other persons connected with family law litigation. The section is broad in its application, covering not only traditional forms of publication like newspapers, but also digital and online platforms.
A breach of section 114Q can result in criminal penalties, including fines and in some cases, imprisonment. Therefore, it is a section that persons involved in family law proceedings should be aware of, and consider carefully.
The Court has indicated in Mertz that when drafting court documents and inputting personal information into AI, this could constitute a publication. The reason for this is that many AI programs claim ownership of the data entered, meaning personal information could be stored or used in a way beyond the user’s control. The solicitor did not indicate to the Court which program was used.
Another issue highlighted by the Court is the accuracy and reliability of AI-generated content. In this instance, it appears that AI had altered the information it was given and no-one had checked the document for correctness. This oversight emphasises that regardless of how AI-generated material is used, human review and analysis is fundamental. Blindly relying on material generated by AI can lead to error and misrepresentation.
The legal profession is built on trust, accuracy and confidentiality, these values cannot at this time be replaced by AI. While AI tools are powerful, they lack the understanding of context, legal and ethical principles that humans bring to the table.
For those considering the use of AI in family law matters, whether legal professionals or self-represented litigants, the message from the Court is clear: proceed with caution. Ensure that the material inputted does not breach any legislative requirements, and always ensure that the information produced by AI is thoroughly reviewed by a qualified legal practitioner.
Written by
Ashlea Taylor
Family Law Solicitor
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