This Week in Family Law
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Each week, we discuss the latest industry news, deep dive into family law topics, analyse cases, and answer questions from family lawyers. 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.
This Week in Family Law
Bonus: FCFCOA practice direction on the use of AI
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In this episode of This Week in Family Law, we discuss the release of a new practice direction from the Federal Circuit and Family Court of Australia on the use of Artificial Intelligence, which provides guidance on the responsible use of AI by all court users, including parties, lawyers and private experts. The practice direction aims to maintain public confidence in court process, ensure that the use of AI is consistent with the proper administration of justice, and ensure any use of AI is based on principles of integrity, accuracy, accountability, compliance with professional obligations, confidentiality and safety.
Chapters:
0:00 - Discussion on the FCFCOA Practice Direction on the use of AI
10:20 - The Honourable Garry Watts' Reaction to the Practice Direction
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:
- The Federal Circuit and Family Court of Australia's Practice Direction on the use of Artificial Intelligence
- The Honourable Garry Watts' reaction to the practice direction
- What lawyers need to be aware of in the practice direction
- What LEAP users can expect as a result of the practice direction and if it impacts them
Links:
FCFCOA's Practice Direction
https://www.fcfcoa.gov.au/news-and-media-centre/updates-profession/pd-ai
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Welcome to a bonus episode of This Week in Family Law. My name is Jenna Downey, and my co-hosts today are Brendan Chew and the Honourable Gary Watts. Well, we thought we were done for the season, and then the Federal Circuit and Family Court of Australia released their practice direction uh last week. And we wanted to bring you a special bonus episode to be able to share with you a bit about the practice direction, but then also our thoughts on it as well. And I'll start uh just with a few comments from me and then I'll pass over to Brendan and then we'll speak to the Honourable Gary Watts to get his opinion on it as well. So it was the 29th of May when this practice direction um was released, and it has um certainly been long awaited for.
SPEAKER_01Yeah, we've been waiting for this for over 12 months now.
SPEAKER_02Um the practice direction applies to all court users, including lawyers, self-represented litigants, expert witnesses, and then other parties, um parties to the proceedings as well. Um importantly, it does not prohibit the use of AI. Instead, it it establishes a clear expectation, clear expectations around how AI can be used responsibly in court proceedings. And I think this is definitely a very welcome practice direction for us to receive. Um, very positive for lawyers to be able to use AI. The court even acknowledges in the practice direction that AI tools, particularly generative AI systems, can improve efficiency, reduce costs, and enhance access to justice. However, the central message is the responsibility always remains with the human user to verify. And we've constantly said that it is important for lawyers to verify the work that AI produces. One of the key themes throughout the practice direction is accountability. If a lawyer uses AI to assist with legal research, drafting submissions, or preparing documents, for example, that lawyer remains fully responsible for the accuracy and appropriateness of the final product of work. And the court makes it clear that AI is not an excuse for mistakes, like in any other situation.
SPEAKER_01That's right, yeah. And importantly, I think it's really good that the court defines very early on in the practice direction the difference between closed AI and open AI or public AI. Um and like you said, it covers the general duties of lawyers to the court, the administration of justice and confidentiality. Um, and and again, like you said, it highlights the importance of practitioners taking ownership and responsibility of the material they put before the court. So it's not enough to simply say, oh, this was you prepared by with the assistance of another staff member at the firm who used AI. That's not good enough because in the end of the day, you're the lawyer who's responsible for it. So it's really urging practitioners to really make sure that the information they put before the court is actually accurate. Um, and then touching on accountability as well. So being accountable for the use of AI, so verifying that the information is accurate, which is, again, like you said, something we've been pushing for from the beginning. Um, and also documenting how AI was used. So what tool, who reviewed it, how it was used appropriately. Having that sort of paper trail is also very important now. So I think every practitioner needs to make sure they're on top of that. Um, and then urging practitioners to understand the technology that's being used and what the limits are. So it's not a magical wand that you can wave across the matter, it'll fix all the problems. It's like every other piece of technology, it's a tool and it has its limits. And those limits obviously are changing as AI develops, but um it's important for practitioners to be on top of what it can and cannot do. Um, and also, of course, the practice notes mentions um confidentiality and uh part 14B of the Family Law Act, so the non-publication and identification of the parties to the proceedings. Um, and then lastly, prohibiting the use of AI on certain types of documents unless there is assurance that it's a closed system. So, again, practitioners need to understand what type of technology and what the limits are in order to be able to fully appreciate that provision as well.
SPEAKER_02And it also talks about the evidence in terms of the affidavits and witness statements. It must reflect the witnesses' own knowledge, experience, and opinions expressed in their own words, which I know has been another concern that has been highlighted with any court putting out a practice direction how they would deal with this particular issue. And I think what the FCFC, FC, FCFCLA have done is um appropriate. They're saying that that lawyers they can use it, but they're encouraged to exercise caution when using AI to assist with witness evidence in particular. Um and similar obligations apply to expert witnesses who must also be provided with a copy of the practice direction to ensure they comply with it as well. Um I found it interesting that the court did stop short of requiring parties to disclose the use of AI, to actively disclose a use of it. So there's no general obligation to tell the court that AI was used to draft a document. However, if asked, the person responsible for the document should be able to explain whether AI was used, as you were saying before, Brendan, um the tool that was used, the output, how the output was checked and so on, which certainly does create accountability for the practitioners there.
SPEAKER_01That paper trail.
SPEAKER_02Yeah. And then having it contained guidance on confidentiality and data security, I agree with you. I liked the fact that the court highlighted the difference between a public AI system and then a closed system as well, because I feel like there has been a lot of confusion about that within the profession. And when a people were saying initially, and these are senior practitioners saying initially, don't use AI because of the risks they were referring to a public system, they weren't taking into account a closed system where that wasn't even a risk in the first place, in terms of the data retention and training the model and the issues that that could cause with client confidentiality as well. It did also touch on the point, and again, I think this is a really good point, particularly for the family court to address, is the way that AI could facilitate family violence or litigation abuse. So just highlighting that for practitioners and any misuse of AI that undermines the integrity of court proceedings may result in the court disregarding the material, making a costs order or some other penalty or referring the matter to the relevant professional body, the the lawyer to the relevant professional body as well. So it is obviously very cautionary around that. Trevor Burrus, Jr.
SPEAKER_01The stern warning to practitioners to use the AI for its intended purpose and not to essentially use it as a means to facilitate any sort of um abuse. Yeah. Um, which is applicable, I think, across not just AI, but really any piece of technology. It's the same thing as you know, you don't want to be fabricating text messages using online generators with or without AI. It's the same sort of approach, I think. Um so practitioners just need to be aware that of their you know their duties.
SPEAKER_02Yeah, exactly. Exactly. It's just common sense. That's right, I think, for for most of us anyway. That's right. Um ultimately, um, in my view, the the practice direction, it was a very balanced approach. And I'm it's very positive, as I said before. The court recognises the potential benefits of AI and does not seek to discourage the innovation behind AI and the technology. Instead, it emphasizes the importance of using the technology responsibly, exercising appropriate judgment and applying common sense to ensure the integrity of court proceedings is maintained. And just a few takeaways for practitioners to have a think about as well. Use AI if it improves efficiency, but verify everything, protect confidential information, and be prepared to explain your use of the technology if the court asks for it.
SPEAKER_01Yeah, yeah. And to build on that, I guess um, my view is that I think this practice direction reflects an overall shift in the attitude towards AI and more specifically generative AI. Um, I think particularly over the last six months. Um, it's positive. It's definitely uh much less restrictive than, say, for example, the practice note that came out from the New South Wales Supreme Court in early 2025. So it's actually we're quite on opposite ends of that spectrum now. And I think it's about as good as it gets for practitioners who are interested or who are already using AI. Um, and I guess it reinforces what practitioners who are already responsibly using AI are already doing. So things like verification, documenting how the AI was used, taking ownership of the work generated by the AI, uh, and of course the big one, um confidentiality and how to manage that effectively. And it's good, again, that distinction between closed and open AI systems. Um though I do think one bit that's quite interesting to me was that at 5.4b of the practice direction, there's a reference to chat history. Um, and I do wonder if if we the practice would benefit from some clarity from the court in relation to whether they mean memories or whether they mean chat history, because they're two distinct things. So chat history is actually being able to view previous conversations for your own records, which I think actually talks to that whole point about documenting that paper trail of how it was used and what tool was used and how you verified it, because having that chat history is a you can actually do that. Without that chat history, you can't document that trail. Um, versus memories, which is actually the AI building a profile about you. So if you've ever used ChatGPT before or something similar, um, if you ask about something in a different chat and you ask and you talk about a new topic in a completely different chat, it will still retain the fact that you've you've spoken to Chat GPT about that. And it might even reference that. So it almost builds a bit of a profile about you. It's like it knows you're a family lawyer, it knows you work in Australia, it knows you do certain things, it knows you prefer parenting matters over property matters, that kind of stuff. So that's what falls into memories. So I wonder if the court means memories as opposed to chat history, just simply for the purposes of viewing previous um interactions with the AI. So I think the profession will benefit from some clarity in that regard.
SPEAKER_03Yeah, absolutely.
SPEAKER_02We now have the privilege of the Honourable Gary Watts sharing his thoughts on the practice direction. Gary, how are you?
SPEAKER_00I'm well, Jenna. More importantly, how are you?
SPEAKER_02I'm fine, thank you, Gary. Um Gary, can you share your thoughts on the development and the content of the Court's Practice Direction?
SPEAKER_00Sure. The FCFCOA's practice direction of 29 May uh 2026 has been coming for a long time. Uh about a week after the Supreme Court delivered its practice direction, it came into operation in February 2025. The chair of the uh FCFCOA judges AI committee uh publicly said that this uh practice direction was imminent. Yeah. But there have been differences of opinion between the judges. Some held strong views about the risks of AI uh in relation to confidentiality, loss of legal professional privilege, breach of part fourteen, capital B, the old section 121, deep fakes, breach of copyright, and systemic biases. In the sixteen months since, the advances in AI have uh exponentially improved uh the way closed AI systems address these concerns. Yeah. The federal court published its guidelines on the sixteenth of April 2026. What the FCFCOA has produced has been worth waiting for. Uh it's uh a practice direction which is both progressive and facilitative. Yeah. The guidelines uh directed both to lawyers uh and to self-represented litigants alike. It's nine pages, and practitioners should make the time to read them carefully.
SPEAKER_02Yes, I agree.
SPEAKER_00At paragraph 3.4, the court acknowledges the significant benefits AI can have for efficiency, access to justice, reducing costs and enabling preparation and participation. A clear distinction has been drawn between closed AI systems on the one hand and public AI and generative AI chatbots and tools on the other. Since the TimeLEAP has been offering its use as AI-assisted products, we have emphasized at all times the importance of the lawyer in the loop. That's a central theme in this practice direction. Many uh of the general principles that already exist in uniform codes of practice for lawyers are also emphasized, including the paramount duty to the court and the administration of justice, the duty to act honestly, competently, and with integrity, the duty to protect confidentiality, the duty to only allege facts that have a proper basis.
SPEAKER_03Yes.
SPEAKER_00When preparing affidavits and witness statements, we have always emphasized the importance of the voice of the witness and having evidence based upon the witness's knowledge, experience, and opinion and expressed in the witness's own words. The practice direction emphasizes integrity, accountability, accuracy, confidentiality, data security, and safety. It requires lawyers to undertake professional education to understand the SWOT of the AI being used, that is, its strengths, weaknesses, advantages, and threats.
SPEAKER_03Yeah, it's a good point.
SPEAKER_00An upcoming webinar and educative materials will be produced around this practice direction, which will help leap users comply with the practice direction. Paragraph 4.7 Little D of the Practice Direction imposes a requirement if material is to be translated from another language, for a NATI certified translator or interpreter to be used. You may not rely upon something like Google Translate. This may have implication for lawyers who are fluent in a second language and are are used to translating court documents for their clients. Lawyers must give experts a copy of the practice direction, and experts must certify that they have read it. There is no requirement, apart from expert witnesses, to disclose the use of AI unless requested to do so. The practice direction is silent as to who may make that request, and consequently it could be either the court or it could be the other side. If asked, paragraph 411 requires disclosure of whether AI was used, what tools were used, how the output was checked and supervised, and how the principles in the practice direction have been observed. There is a duty on a lawyer to bring the court's attention to the use of AI by the other side if you think they have produced contents which are false or misleading. Practice direction 4.14 provides that if there is a self-represented person on the other side and you are using AI to efficiently undertake the management of your case, then you should offer to undertake highly manualized tasks such as preparing a joint chronology. Paragraph 14.18 imposes an obligation for lawyers to be familiar with the terms of service of their AI products and Gen AI tools, and again, we will help with that. Practice Direction 4.20 states that court users must not use AI as a tool for family violence or litigation abuse. AI obviously has the potential to uh prop prepare and provide vast amounts of information, and that can amount to litigation abuse.
SPEAKER_02Yeah, I agree.
SPEAKER_00At the end of the practice direction, there are warnings about the protection of confidentiality or sensitive information, the possible risks of breach of Part 14, Capital B, compliance with the Harmon obligation and obligations under suppression and non-publication orders, breach of copyright and intellectual property rights. As already outlawed by the rules, AI must not be used in court for recording or transcription of proceedings. In my opinion, this practice direction gives the green light to the progressive use of the advantages of using uh AI in the practice of family law in Australia.
SPEAKER_02It has been so valuable to have your insights and to hear your insights on the practice direction, Gary, and also to have your involvement in the development of material that our users can rely on to comply with the practice direction as well.
SPEAKER_00I'm looking forward to being involved in that.
SPEAKER_02Thank you, Gary. We've loved being in your ears for this bonus episode. Don't forget to like, subscribe, and share this episode. If you have any questions or any feedback, please email us or reach out to us on TikTok, Instagram, or YouTube.