Ep 13: Weaponised court proceedings

In this episode of This Week in Family Law, we delve into the Use of Generative AI Practice Note from the Federal Court of Australia. 

In Law in Motion, we explore how court proceedings can be weaponised against your client and what you can do to reduce the risk of this occurring.

Chapters:

0:00 - Introduction

0:44 - What's Up? - Updates in Family Law for this week

4:24 - Law in Motion - Weaponised Court Proceedings

22:14 - Your Questions Answered

Disclaimer: This podcast is intended for general information and discussion purposes only. It does not constitute legal advice, and should not be relied on as such. The views expressed are general in nature and may not apply to your specific circumstances. You should seek independent legal advice before acting on any information discussed.

About the podcast:

This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.

Topics covered in this episode:

- Use of Generative AI Practice Note from the Federal Court of Australia

- Weaponised Court Proceedings

- AI in the Legal Profession

- Future of AI Regulation in Courts

- Weaponisation of Court Proceedings

- Impact on Clients of Court Proceedings

- Limitations of the Family Law System

- Practical Guidance for Family Lawyers

- Legal Funding & Cost Management

- Self-Represented Litigants

- Best Practices for Using AI in Law Firms

Links:

Use of Generative AI Practice Note

https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/gpn-ai 

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Transcript

SPEAKER_00 0:09

Welcome to This Week in Family Law, the go-to podcast for busy Australian family lawyers who want to stay updated without the overwhelm. I'm Jenna Downey and my co-host today is Brendan Chu. We're coming off the back of a long weekend, Brendan, celebrating Anzac Day. How was it?

SPEAKER_01 0:27

It was great. It was great to have a long weekend and I went fishing with my family. How about you, Jenna?

SPEAKER_00 0:31

It was really nice. We went to the service early in the morning for Anzac Day, which was really lovely. And then I caught up on some sleep during the day.

SPEAKER_01 0:41

That's always nice.

SPEAKER_00 0:42

Let's get into this week's update. What's up, Brendan?

SPEAKER_01 0:46

Thanks, Jenna. So on the 16th of April, the Federal Court of Australia released its practice note on the use of AI. Now, obviously, this does not apply to proceedings in the Federal Circuit and Family Court of Australia. But it's still an interesting read for all practitioners, I think, particularly those in New South Wales, because it provides a very different perspective on the use of AI when we compare that with the stance of the Supreme Court of New South Wales. I won't spoil it for all of the practitioners who haven't had the chance to read it yet. But the federal court's practice note takes a far more progressive approach on the use of AI and acknowledges the benefits of generative AI on its impact on proceedings and the potential it has to expedite the resolution of matters, reduce legal costs, and increase access to justice. Of course, it does warn against the misuse of generative AI. And importantly, it makes a very good distinction between closed and open AI systems, which in my view is a very, very important distinction, hence why I think it's a very valuable read for all practitioners, even those who don't regularly file proceedings and appear in the federal court. And even though it doesn't directly apply to family court proceedings as well. And I know we are, of course, very eagerly still awaiting the Federal Circuit and Family Court to release their practice note. But I would expect something similar given the progression of not only the advancement in technology surrounding AI, but also the understanding of AI compared to, say, 12 or 24 months ago, because we are now very far further along the track, I think, compared to the past.

SPEAKER_00 2:31

That's exactly right. And as you alluded to, the Supreme Court practice note was issued quite some time ago. So as time goes on and people learn more, and really the drafters of this learn more about AI use and the benefits of AI, they're clearly seeing how it can be helpful in proceedings.

SPEAKER_01 2:52

That's right. There's definitely a shift in the perception and also the use of it as well, which has led to a a clear difference between, say, the original practice note that was released by the Supreme Court here in New South Wales versus the one that just came out from the federal court uh last week.

SPEAKER_00 3:07

And when I was reading it, there was a paragraph somewhere at the bottom that did mention that this may be updated from time to time. I can't remember exactly the wording. But it does suggest that they will, that they could issue an update, which if you think about this one coming out and what it said being quite favourable or seeing the benefits of AI, that anything subsequent to that, as more time goes on and as more is known about AI and AI does improve, that this that it would the a practice note would become even more lenient.

SPEAKER_01 3:48

Exactly. That's right. And ultimately I think that's where the direction is going to be headed, um, not just in uh Australia, but just the world in general, as more and more practitioners grapple with the understanding of AI and courts as well, understand the benefits of it. Um there may be instances where uh more certain uh practices are cautioned against, but ultimately I think overall things are going to become more uh pro-AI, if we can put it that way.

SPEAKER_00 4:16

Thank you, Brendan. And that's what's up for this week. For law in motion this week, Brendan is going to focus on whether court proceedings are weaponized and the impact that this might have on a matter or on a client. Brendan.

SPEAKER_01 4:35

Thank you, Jenna. Um, so this week's episode is a bit of a part two to episode 11, where I spoke about whether the family law system is broken and uh specifically looking at the outcomes for clients and how our clients perceive those outcomes. Um, this week I'm gonna look at, well, a bit of a rewind actually, um, and look at the actual court proceedings themselves, specifically whether court proceedings are being weaponized and how that can impact our clients. Now, of course, it's important to preface this discussion by acknowledging that a vast majority of matters don't go through the court system. A vast majority of them actually settle outside of court. Um, and look, most parties are able to resolve their matter by negotiating, mediating, or in some cases, other methods of alternative dispute resolution. And that in itself is a fantastic statement about the work family law practitioners are doing to keep matters out of court. And often the ones that do end up in court are the ones that do feature more complex legal issues or do require the intervention of the court. Um, but of course, now today I'm not going to talk about the cases that genuinely do need the help of the court. It's more so the ones that, well, I want to start some discussion around whether or not the court system is being weaponized in cases where perhaps it doesn't need to be involved, often to the detriment of our clients. And hopefully that will this will provide some practical insight into how we as family lawyers can recognize where that is taking place, how to manage it and respond effectively. So, of course, before we talk about the uh question of well, how do we manage this issue? Let's talk about um what I mean by weaponization, because the word weaponization, that's a fairly dramatic or scary word. Um, and I know I know that's the case, but what I'm talking about often includes things that are a little bit more subtle. So things like evading service of documents, uh, noncompliance with filing directions, raising issues or allegations at the 11th hour, um, parties seeking to have the matter transferred to another registry for the purposes of actually just creating delay and increasing costs, um and the list goes on. Um, and individually, all these things uh they they might seem quite small, benign, or subtle, but the cumulative effect of this is that it can have a quite an impact on the nature of the proceedings and also ultimately the impact it has on our clients' lives. Um, how many times, right, have we heard these statements like, oh, I've got no more fight left in me, let them have what they want, or I've got no more money, I can't keep doing this, or um, this is making me relive all the traumatic experiences I thought I left in the past. I I can't take this anymore. And I'm sure us as practitioners, we've heard some variation of these words, probably many times before. And so that begs the question: is the system broken? Um, can court proceedings be weaponized? Well, I think this is the uncomfortable part of the discussion, right? Because the reality is the system isn't designed to prevent this type of outcome entirely. In fact, some of the core principles that we rely on actually facilitate some of these things. Um, so things like um we have open access to the court, we have a strong emphasis on procedural fairness, uh, we have a system that, in my view, rightly, is cautious about shutting out people or labeling conduct too early. And overlaying all of that, we have delay, we have limited judicial resources, and significant cost pressures. So, what does that mean in practice? Well, it means that the threshold for getting into court is relatively low, but the threshold for stopping someone from continuing their behavior is actually quite high. So these two things are sort of opposed to one another. And as we know, once proceedings are filed, once the gears start turning, it's very difficult to make them stop. Once we're in the court's hands, we're in their hands and we're subject to that whole process. Um, and it means that sometimes the system itself doesn't simply have the capacity to respond to every instance of the conduct I mentioned earlier. And as family lawyers, it it's we know it's not endorsed by the court, but it's certainly not outright stopped either. And so we understand this distinction ourselves, right? We understand this is the nature of the system, but for our clients, they don't necessarily understand that there's uh systems in place to address it, but not directly. And so to them, this doesn't really matter very much. All they see is just the fact that this is going on and on. This is the impact it's having on me, both from uh from my current life, but also um my future with all this financial pressure that's being put on me from essentially the whole process through the court system. So, what does that mean for family lawyers? Well, I think this is where we as practitioners actually have the most influence. Um, because whilst we can't change the system, how it works as a whole, we can control how we operate within it on a matter-by-matter level. Um, so I've got some practical tips here, sort of reflecting on my own experience in practice on how I probably could have done something more to manage some of these issues. So the first one, I think, is actually thinking twice about commencing proceedings. So often we actually commence proceedings, or in some cases what we call strategic litigation to get the matter moving, often when it has stalled or when negotiations or mediation has failed. Um, you know, really asking yourself the question: have I done everything as a lawyer to move this matter forward? Is court really the only other option I have at the moment? Um, to give an example, I once had a matter where the other side was self-represented. Uh, we were in the process of actually preparing consent orders. We were very, very close to reaching an agreement and actually having a resolution and an outcome for the clients and the and the parties. But um the other side decided they weren't going to proceed any further. They were self-represented, they weren't going to agree any further, and and further negotiations and mediations ultimately did not bear fruit. And so my thought was, look, well, court is the only other option then, because we simply just can't get any further. Um and then what happened unfortunately for my client was that the respondent did not appear at the first return or three subsequent other court hearings. And at every instance, we we, despite us actually asking for the matter to proceed on an undefended basis, the court ultimately sort of took a while to get to that point and gave the respondent every opportunity to appear and and uh put forward uh their response documents and their position. Trevor Burrus, Jr.

SPEAKER_00 11:21

And meanwhile your clients bearing the cost and rolling preparing the court documents and commencing proceedings, but then also for you to attend these court events when no one turns up.

SPEAKER_01 11:30

Aaron Powell Correct, that's right. And and it just dragged on and on for about 12 months. And ultimately what happened was at the 11th hour at the last minute, the respondent finally engaged legal representation, and then the matter proceeded as if uh that had been the case from the beginning. So we were essentially back to square one um once they had actually engaged a lawyer and filed their response documents, and and the matter proceeded through its usual court uh course through further court hearings, uh, and this time with the respondent finally in attendance. Um and and and like you said, the costs just kept ramping up. The delay and the emotional toll, which you can't quantify in dollar terms, uh kept ramping up for my client. And this was, you know, uh in the background, parenting was starting to fall apart as well. It was initially a property settlement matter, but eventually parenting had fallen apart, the co-parenting relationship had fallen apart so much that that became an issue. And as we know, when parenting becomes a problem, costs go up to the moon and back. So and to this day, I I still question well, was the delay somewhat self-inflicted? Well, were the costs somewhat self-inflicted by the fact that we had um decided that court was the only option at that stage? And so I always think, what more could I have done to have reached an outcome without the involvement of the court? Would the outcome have been different? So definitely thinking twice about is there something more I can do that would be tip number one for our listeners.

SPEAKER_00 12:54

Yeah. It's a tricky situation in the example that you gave because if you have a client who wants to be proactive and really wants to get things moving, that is the next step. Logical step in some cases, yeah, that's right.

SPEAKER_01 13:06

It that's right. Like it is a bit of a double-edged sword, um, especially since um it's it's not easy just to say, all right, well, forget about that. We're just gonna go backwards a little bit and go back to negotiations because there is the unknown factor. Will that even get us anywhere? Or should is the best course to proceed through the court system? Um but in the end of the day, I can understand the client's perception that look, this whole system just doesn't work. It's not it's not helping me achieve an outcome when in reality it should be helping me get to where I need to be in a much more timely fashion. Yeah. Yeah. And of course, speaking of costs, there's no doubt that cost itself is a barrier to being able to continue proceedings. There's there's no question about that. Um, particularly when you are acting for the financially disadvantaged party. Um, usually it's it's it's the primary care of the children, someone who hasn't been in the workforce for a vast majority of the relationship. Um and yes, while there are options like seeking orders for uh, or or an agreement in some cases for funds to be distributed on an interim basis, I think following the reforms that came into effect in June last year, um, and also the subsequent case of um Shinihara, I think uh I've heard from a lot of practitioners that they found that it's actually quite difficult for parties now to agree on an interim distribution of funds out of fear that it it's it's no longer going to be categorized in the way it was prior to the reforms. Um potentially in this case, the the more pragmatic approach instead is actually to utilize legal funding. Um, and this is applicable throughout the life of matter, not just restricted to, of course, court proceedings. Um I think it's especially useful in family law because we often get asked by clients, well, you know, can I pay at the end? Is there some arrangement where I can just get through all this and then pay at the end? Well, the answer is often no, because we just don't know the full scope of the work. Um, you know, as we saw with the example I just mentioned, parenting wasn't initially an issue and then it became one. So there would have been no way I would be able to anticipate, well, what exactly will be the final cost of a matter once it's all wrapped up? So it's often the case that we have to say no, sorry, we can't offer a pay at the end option for our clients. Yes, we can offer potentially fixed fee at certain stages of the matter because those are more sort of concrete. This is the full scope of the work that's going to be involved. But for the entirety of the matter, I cannot say how much it's going to cost a client, and therefore it's impossible for us to say, or we're going to wear the cost until the very end of the matter. So often the answer is no. But legal funding definitely is an option, um, or litigation funding, depending on how you call it. Um, and so being just aware of certain providers of that service, for example, um, Just Fund, who can assist family law clients in actually uh meeting their legal costs until they reach a resolution in the matter. Um, especially, and this is especially useful if you if your client is at a comparative disadvantage, if they are the financially disadvantaged party in the proceedings. Um, and lastly, my third tip is um to ensure you do not fight fire with fire. So um just because your client can be the one that's actually burnt by it. And what I mean by this is actually narrowing the issues rather than trying to broaden them. So it's very easy to get caught up in the way the matter's moving forward, you know, the aggression, the letters flying back and forward, and trying to sort of match the other side's approach with more affidavits, more letters, more applications, you know, the usual type of stuff that get that happens and starts to fly back and forward over the table when a matter gets heated. Um, and this is especially true, I think, if your client is the type that gets worried that you're not matching the other side's aggression, which leads them to question whether or not you support their position. I'm sure we've all had clients like that before. Why are you pulling your punches? Why aren't you matching that level of aggression? You know, I've had that chat with clients many times before. Um, but ultimately I think matching aggression just feeds this cycle. It doesn't make anything better, it makes it worse. So, really taking a step back and considering what it is that you actually need to do to move the matter forward in a positive direction. So, again, how do we actually deal with issues that perhaps aren't necessarily core to the main problems at hand? How do we get rid of those? And really not just bringing the problem to the courtroom, but also bringing the solution. Trying to figure out, well, here's the problem. That's great. We all know that there are issues, but how do we actually get out of this problem? How do we move forward from this? What are some practical steps we can take or the parties can take to actually resolve them? What's the solution here?

SPEAKER_00 17:36

And is there anything you can suggest to lawyers to be able to take that step back and really look at a matter for what it is? Because sometimes you just get so involved in the daily grind and you think you receive a letter and then you mentally prepare a response to a letter. But just to take that step back and just to consider, okay, how is this going to help the matter move forward? And just question, I suppose, that next step. Is that what you would absolutely yeah?

SPEAKER_01 18:04

Like take a step back and go, well, even if let's say we spent another week arguing about this issue, is that going to move the needle overall? Like, yes, we know, let's say, for example, that there's a sporting event that's coming up, and and I know my client really wants to attend that. But are we going to spend thousands of dollars arguing about this particular one sporting event, or is it actually going to be better for my client and their relationship with the children? If look, we just let this go, there are going to be more in the future. Having that conversation with your client and going, okay, look, I get you're really worked up about this. This is a really important event for you, but there are going to be more opportunities in the future. The children will have many, many more uh chances for you to be at that sporting event and and really sort of again getting your client as well to look at the bigger picture to really understand that, okay, well, even if we deal with this one issue, that's not going to move the needle much. We still have bigger issues, bigger fish to fry. Let's focus our attention and your money on those issues.

SPEAKER_00 18:58

And thinking about this from a slightly different perspective, if you had well, if there was a person, because let's say they couldn't afford a lawyer's cost, they they couldn't get litigation funding because there wasn't property available to be able to repay the funder. So you have a self-represented litigant or both parties are self-represented going through court, and one person may still be using it as a way to just drag the other person through a very long process and a very emotional process.

SPEAKER_01 19:31

That's right. Even re-traumatizing them. Yeah. Because as soon as affidavits are involved, there's the whole history of the relationship. And someone's essentially forced, well, everyone's airing their dirty laundry out. Everyone's forced to read about the things that they did or complaints about what the other person shouldn't have done, you know, all that stuff immediately comes out. And you're right. In cases where both parties are self-represented, or even just one of them, they can they can afford almost to drag out the process as long as possible, as a as a use using the system essentially as a weapon, which is talking back to the points I made earlier about, well, this is unfortunately some of the limitations of the system. It's not designed to necessarily stop that behavior because it's so easy to start that process.

SPEAKER_00 20:12

And in instances where in the example of the case that you had, you were advocating for your client and you were trying to get the matter moved along. But even in that instance where they had a lawyer representing, you couldn't necessarily get the like they were reluctant to do anything without the other party being involved in the proceedings. So you can only imagine a self-rep and they they just want to get through it. But they don't know, they might not even know how to verbalize what they want to happen or even understand what is happening. Trevor Burrus, Jr.

SPEAKER_01 20:44

That's right. I mean, you often go to first returns, whether that's in person or in many cases now it's online, and you get the benefit of actually sitting there and listening to what's happening. Often you do get self-represented litigants or litigants in person appearing on the Microsoft Teams call, for example, and not understanding the purpose of the first return and trying to essentially argue their case. And you've got the registrar, judicial registrar going, no, no, no, hold on. This is just what this is what we're trying to achieve here today. Um, you know, have you considered getting a lawyer and this and that? And that there's a lot of time that's being spent trying to sort of handhold the self-represented litigant through the process, which ultimately shouldn't be the responsibility of the judicial registrar on the day, but it falls to them because no one else is there to actually tell them that's what they should be doing, and therefore it's costing the other party both time and money.

SPEAKER_00 21:32

Yeah. Yeah. It's it's just difficult, isn't it?

SPEAKER_01 21:35

It is. There's no there's no easy solution to all this.

SPEAKER_00 21:37

Yeah, yeah. And I get the court has certain things that they need to do, but at the same time, you would hope that they would want to move things forward.

SPEAKER_01 21:47

Absolutely. Yeah. Yeah. So I think ultimately, um, you know, it's just sort of tying it back now to what I spoke about in episode eleven and the broader topic as well, which is is the system broken? And again, my view is that it's not broken, it's definitely not perfect. But it's something that again falls to us as lawyers to help manage because we are the ones who are in the best position to make things happen and move things forward.

SPEAKER_00 22:14

For your questions answered this week, we've received a question from Rob, which I'll ask to Brendan now. With the release of the federal court practice note on the use of AI, do you think the Federal Circuit and Family Court of Australia or Family Court of Western Australia will have a similar stance? And then there's part two to this question as well. What can I do to ensure the use of AI in my firm is in line with the court's stance on the use of AI?

SPEAKER_01 22:39

Okay, thank you, Jenna. That's a great question, Rob. So to answer part one of this question, I think, of course, whilst none of us can predict when the Federal Circuit and Family Court of Australia or the Family Court of Western Australia will release their practice notes on the use of AI, I still think that the federal court's practice note is a very good indicator on what the legal profession's perception of AI is at the moment. So as I mentioned earlier in this episode, there's now a far better understanding of the differences between open and closed AI systems, the former being your free-to-use AI programs, and the latter being paid versions of AI programs or AI programs available through vendors that have enterprise level agreements with the AI providers themselves. And I think with this increased understanding, there will be a level of understanding that AI, when used correctly, will do more good than harm. So there will be likely some guidance on potential pitfalls where solicitors can and have fallen into rather than outright prohibition on its use through the course of proceedings. And so for part two of this question, whilst I cannot comment specifically on safeguards you should implement for your firm directly, particularly given the fact that the FCFCOA and the Family Court of Western Australia have are yet to release their practice notes, I can shed some light on some things that you can consider at a broader level. Probably the biggest one would be to make sure that anyone in your firm who's using AI is in fact using a closed AI system, given the increased emphasis on not just how AI is being used, but also what AI is now being used as well. So that means either purchasing licenses for your staff or actually running an audit on what they're actually using at the moment, making sure that that is in fact a closed AI system. Data retention, I think, is probably one of the biggest concerns for firms at the moment. What is exactly being retained by the AI provider and checking with the service provider to actually ensure that they do not, in fact, retain or train the AI model on the confidential client data that's being fed into that particular AI program. And similarly, educating your staff on the potential pitfalls of AI as well. So sit down with lawyers, especially, and create an internal policy on the do's and don'ts of AI. Reach a common understanding at your firm on what is permissible and what isn't, and talking to them about the importance of using closed AI systems. So there's no accidental or inadvertent disclosure of confidential client information into an open AI system, which could potentially be then used to train that model. And also educating them or receiving education on a firm-wide level on how to ask questions to AI that don't breach confidentiality. So, for example, asking legal questions for research in ways that don't identify your client, but instead talk about the broader legal issue at play. So those are my um that's my advice to to Rob here.

SPEAKER_00 25:50

Thank you. And we obviously work at Leap and we have a number of AI products within our system, which are safe and secure to use, and it is in what you're referring to as a closed system. We get a lot of questions from clients asking like really good questions because valid questions. And it's good to see that those questions are being asked because then it does inform that that person, that lawyer has some understanding of what needs to be asked and what is important. Trevor Burrus, Jr.

SPEAKER_01 26:22

That's right, that's right. Being asked the right question means that these law law firms and lawyers are turning their mind to potential pitfalls. And for them to want to understand how to use it correctly is a great indicator that the legal profession and the collective understanding of lawyers is shifting in the right direction.

SPEAKER_00 26:40

Aaron Powell And I feel like that those really pointed direct questions, very valid questions, as you were saying before. We weren't being asked those a year ago, two years ago.

SPEAKER_01 26:49

Even six months ago, actually.

SPEAKER_00 26:51

It's more recently that they're being asked. So it does show this shift, which is reflective of also this practice note as well.

SPEAKER_01 26:58

Exactly.

SPEAKER_00 26:59

Thank you, Brendan. We've loved being in your ears this week. Don't forget to like, subscribe, and share this episode. If you have any questions or feedback, please reach out to us by email, or you can also reach us on TikTok, Instagram, or YouTube. Stay tuned for next week's episode. New episode drops Monday.