While Australian Family Lawyers principal lawyer and Sydney practice leader Elise Fordham said that while AI has not yet had a detrimental effect on family law in Australia, there are a number of global stories to take note of.

“In the last week, we have all seen the news stories about the lawyer in the USA who used ChatGPT to write his submissions, and the judge discovered that six seemingly believable citations he referred to in his submissions were ‘bogus judicial decisions with bogus quotes and bogus internal citations’. The lawyer had understood that he was ‘unaware that its content could be false’; however, ChatGPT creates original text on request but comes with warnings it can ‘produce inaccurate information’. We will find out on 8 June 2023 what the fate of the lawyers involved will be,” she explained.

“Stories like this will no doubt make the public sceptical of using AI for pivotal tasks such as in litigation. Whether its source of information will expand and change will be the determining factor in its effectiveness in the future. But it will for quite some time, I believe, not be able to match the human connection necessary to understand the nuances of a relationship and the navigation of the best path forward following separation, to respect the role parents have with each other and with their children after separation.”

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Blumberg Family Lawyers principal Alan Blumberg echoed a similar sentiment — and said that in his experience, AI is yet to have much of an impact on family law matters specifically.

“Family law is more of a person-to-person than legal/technical practice. Family lawyers are always looking for ways to utilise new technologies to deliver more efficient, cost-effective and high-quality services to their clients, who are often going through some of the worst times in their lives,” he said.

“Family lawyers will be looking at AI in the future to identify opportunities towards this aim, but at this stage, it is not clear where those opportunities may lie. Family lawyers will likely need assistance from others to identify and implement the opportunities that AI may present.”

However, Lander & Rogers family and relationship law partner Monique Robb said that while AI may not replace family lawyers any time soon, the BigLaw firm has already seen cloud technology “disrupt the way evidence may come to light in family law matters, especially messages or photos that are shared across multiple devices”.

“Coercive control using devices and technology is real, it is happening, and it is a significant safety concern for many clients. While generative AI presents many opportunities, there are limitations, at least at present. We haven’t yet seen obvious detrimental impacts on family law matters from AI, but we suspect that is a question of when, not if,” she explained.

“We have concerns that the large language model has a knowledge cut-off and can make mistakes, hold biases and produce inaccurate information. The reality is, the technology does not know ‘right from wrong’, but its outputs/responses are seemingly authoritative. The technology is trained on large datasets to mimic human language and context​.”

This could potentially lead to clients adopting incorrect information from AI instead of obtaining advice from a family lawyer, something which Lander & Rogers has already seen.

“We already have cases where clients come in with information they’ve obtained online, only to discover it is from a foreign jurisdiction and has no application here — it would not be surprising if AI yields similar results, particularly as it is dependent on asking the right question,” Ms Robb said.

“We also anticipate family law clients using AI to help them understand legal advice. It is likely clients will ask AI to ‘summarise’ or ‘explain’ the written advice that has been given to them. This might amount to a waiver of their legal privilege, as it remains unclear how the information or data is stored in AI systems.”

Nicholes Family Lawyers managing partner Sally Nicholes confirmed this — and said that while her firm is exploring the use of AI, so are their clients.

“The average client and Australian family lawyer will not use AI in the general sense that we refer to today — that being ChatGPT or similar AI language models. However, in current practice, we do see use of some forms of AI; for instance, Nicholes Family Lawyers uses Settify, an AI-driven platform [that] guides clients through some questions to streamline the initial consultation process,” she said.

“It is also likely that some family law clients are already using ChatGPT to do their own preliminary research on family law issues and, while we encourage clients to be as informed and empowered as they would like to be, it is crucial to remember that ChatGPT and other AI results can be incomplete, misleading and incorrect.”

Therefore, best practice for family lawyers includes exploring and using new and emerging tech, including AI.

“Technology, when used properly, is a beneficial tool. This applies in all areas of life, including family law. Moving forward, best practice family law will involve lawyers incorporating AI into their practice, while remaining acutely aware of its specific capabilities, limitations and possible dangers if misunderstood and misused,” Ms Nicholes added.

“However, what will never change is the fundamental human relationship between a family lawyer and their client. People often come to family lawyers at times of significant and heightened personal distress and vulnerability in relation to themselves and possibly involving children. They put their trust in us as lawyers and people, and this is the foundation on which we work together.”

Anticipating potential uses of AI also means recognising the impact that technology will have on family law disputes, as well as family law clients, which Ms Robb said Lander & Rogers combats by adopting technologies and innovative practices.

“We have two dedicated innovation managers who work across our national practice group to ensure our lawyers are armed with the right information and the know-how in relation to AI, encouraging the early experimentation and adoption of AI into their practice,” she outlined.

“Lander & Rogers has a firm-wide generative-AI policy that encourages all staff to understand and experience the functionality and capabilities of AI, within clear boundaries to safeguard our ethical and professional standards. Noting the impacts of AI for family law clients and our practice, we are leveraging the expertise of our innovation managers who are dedicated to exploring and embedding these tools to help our family law clients.”

Additionally, AI tools can speed up some of the more “slow and tedious aspects of family law”, at a lower cost, according to Ms Fordham.

“Australian firms are moving quickly to adapt to AI, and to work out how they can implement or shield their business from AI. At the moment, family lawyers should be extremely cautious in using ChatGPT in their work given that it does not interact with Austlii and similar databases, and also to preserve the confidentiality of clients and the security of their firm’s IT systems,” she explained.

“As for the AI tools developed by emerging Australian businesses for use in Australian family law matters — give them a go! You don’t know what you don’t know, so have a play around with them and find out if they can make your life easier, your client’s bills more affordable, and everyone’s stress levels lower.”

AI also has the potential to reduce the document-review aspects of family law and create a more “dynamic learning environment” for junior lawyers to upskill in the practice area.

“[Family lawyers should] speak with family law clients about the impact of technology, especially its limitations and what it means for their privacy, confidentiality and privilege. Check the accuracy of any responses or outputs by AI technology and be clear with clients about what you will/will not use AI technology to do,” Ms Robb added.

“Family lawyers also need to remember that AI cannot do everything, and it is not a substitute for experience, legal advice, representation of clients in court nor engagement in legal argument. Finally, it will not understand and work through ethical dilemmas for you. With AI fast becoming part of legal practice, the aspects that can’t be automated will be the interpersonal aspects of the relationship with clients, which is often just as important as the technical.”