AI and Australian family law: opportunity, risk, and what it means for separating families
Artificial intelligence (AI) is entering Australian courtrooms: not always with permission, and not always with good results. As the technology becomes more accessible, its intersection with family law is raising important questions for both practitioners and the families they represent.
The clearest warning to date came from the 2025 decision of Mertz & Mertz (No 3) [2025] FedCFamC1A 222. In that case, a solicitor filed a Summary of Argument and List of Authorities in appellate proceedings. A month later, amended versions of those documents were filed – quietly removing legal authorities that turned out to be misleading, non-existent, or inaccurate. A letter accompanying the amendments acknowledged and apologised for the errors.
The solicitor later explained that AI had been used in preparing the documents, and that it was her paralegal who had done so, though she accepted full responsibility for the outcome. The financial consequences were immediate – she was ordered to pay the opposing party $10,000 in costs thrown away in correcting those errors, and the matter was referred to the Legal Services Commissioner for further investigation.
The Court was unequivocal – AI had the capacity to confuse, to create unnecessary complexity, and to mislead both the Court and the parties.
More recently, in Tesar & Szep (No 3) [2026], Justice Brasch was equally critical of submissions filed that were described as “redolent with faulty and fictitious citations”. The pattern is consistent – where AI-generated content reaches the court unverified, practitioners face costs orders, regulatory referral, and reputational damage.
Privacy is also a concern
There are also outside of court, legitimate concerns about privacy. Family law matters routinely involve some of the most sensitive personal information a person holds including financial records, children’s details, communications between former partners. Uploading that material into a public AI platform carries real risk, as those platforms are not bound by the same professional confidentiality obligations or privacy requirements that apply to family lawyers in Australia.
The Federal Circuit and Family Court of Australia has not yet issued a formal Practice Direction on AI use, though multiple superior courts have done so, and formal regulation across all jurisdictions is anticipated. When that guidance arrives, it is likely to impose disclosure obligations on practitioners, require transparency about how AI has been used in preparing documents, and set minimum standards for verification. Practitioners should already be treating the NSW Supreme Court Practice Note, which came into effect in February 2025 as the benchmark for responsible AI use.
Is AI helpful or a hindrance?
For anyone navigating separation currently, the practical takeaway is straightforward: AI can be a useful starting point for general information, but it cannot account for the complexity of your individual circumstances, the discretionary nature of Australian family law, or the rapidly evolving legislative landscape following the Family Law Amendment Act 2024.
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