Risks of using Artificial Intelligence in the Family Law System?
Love it or loath it, Artificial Intelligence (“AI”) doesn’t appear to be going away anytime soon, and its use in our everyday lives is becoming increasingly commonplace. While there are certainly uses for AI, there are also substantial risks associated with how AI is used and the degree of blind faith people put in it.
The use of AI is an ongoing issue that Australia’s legal system continues to grapple with, with courts each addressing the issue in their own way.
For example, back in November 2024, the Supreme Court of NSW released a set of guidelines regarding the use of AI and how it should be used. Key among these guidelines, which came into effect of 3 February 2025, was the requirement that AI could not be used in affidavits, witness statements or character references, that those documents no had to include a disclaimer that AI was not used in generating their content and that AI cold only be used in those documents if the Court gave approval to do so.
At the time of publishing there is no such guideline (though one is expected) in the Federal Circuit and Family Court of Australia (“FCFCOA”), but the Court does not accept reckless AI usage. The recent matter of Hemold & Mariya (No.2) is one such matter were the issue of AI was addressed.
Hemold & Mariya (No.2)
Hemold & Mariya (No. 1) parenting orders were made on a final basis after the matter went to final hearing. The father, Mr Hemold was self-representing and did not handle the stress of the final hearing particularly well, as the matter was adjourned repeatedly to allow him to calm down and her was ultimately asked to leave the courtroom after he began accusing the mother, Ms Mariya, of lying while he was in the witness box. Ultimately orders were made in Mr Hemold’s absence.
In response to the final Orders made in Hemold & Mariya (No. 1), Mr Hemold, who was still self-representing, lodged an appeal. In this appeal he alleged that there were many issues with judgement, such as that he was denied procedural fairness at the final hearing, as being required to leave the court room due to his conduct prevented him from being fully cross-examined, prevented him from cross-examining Ms Mariya’s witnesses and from presenting his argument. He also claimed that the Judge was biased against him, as he claimed that Independent Children’s Lawyer and Ms Mariya’s legal representatives had made disparaging and misleading comments about him, and the Judge had failed to intervene and have them stop.
Mr Hemold also alleged that the Judge had failed to consider his evidence, had not granted his urgent application for urgent relocation orders, that the Family Report was one-sided, that he was disadvantaged by his multiple stints in prison during the proceedings, that the Judge relied on unverified evidence from the Police, that Ms Mariya’s evidence changed over time and should not have been relied upon, and that Judge ignored evidence that supported Mr Hemold.
In Mr Hemold’s Notice Appeal and his Summary of Argument documents, where he set out his arguments for having the court grant his appeal, Mr Hemold referred to a number of legal cases that he claimed supported his argument. The Court on reviewing Me Hemold’s document noticed that either the cases Mr Hemold referred to did not exist or the case did exist but did not in any way support the Mr Hemold’s argument.
When the matter went to Court, Mr Hemold confirmed that he used generative AI to prepare his materials. The court then identified two risks posed by the reckless use of generative AI.
1. All litigants (including self-represented litigants) are obligated to not mislead the court or the other party and that blind reliance on AI without verifying its accuracy runs the risk of confusing parties, creating unnecessary complexity, waste the court’s time and misleading the court.
2. Under the current family law legislation, it is an offence to communicate or publicise the details of a case that identifies the people involved in the proceedings. The issue here is that uploading court documents into open AI programs, which store, collate and replicate data, runs the risk of making the details of the case available to the public and potentially waiving legal privilege, which would otherwise mean the documents were confidential.
On reviewing all of Mr Hemold’s allegations, the court determined that none of the matters identified by Mr Hemold proved that the Judge had made a mistake and made orders to dismiss the appeal.
Key takeaway
AI is a powerful tool, and can be incredibly useful, provided it is used responsibly and you make sure to fact check it. Having blind faith in AI and relying upon it to singlehandedly run your matter, as with Mr Hemold, can be dangerous. When you’re dealing with such high stakes such as access to your children, it is inadvisable to blindly rely on AI. If you absolutely must use AI, then it is highly recommended that you take steps to independently verify what the AI is telling you, and make any necessary changes in order to ensure the material correct, the cases are real and that the perfect piece of legislation your relying on isn’t a generative AI’s hallucination before you file your material. This however, does not address point 2 where family court documents cannot be uploaded or publicised in a public forum. It should be noted that many law firms utilise AI, have specific non public AI systems which they use to assist clients.
By Kayte Lewis and Enda Byrne
Voice Lawyers: Your Guide in Family Law Matters
This update is general in nature and is not legal advice. If you need help dealing with a parenting dispute or require assistance with a family law matter, at Voice Lawyers, we hear you.
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