New Federal Circuit and Family Court Practice Direction on the use of Gen AI
A new Practice Direction has recently been published by the Federal Circuit and Family Court of Australia (FCFCOA).
The Practice Direction applies "regardless of whether a product is ... described as AI, GenAI, smart, assistive or similar". It is therefore capable of reaching the embedded tools few practitioners think of such as transcription, document management, and search.
The FCFCOA is slightly different than other courts because it hears family law proceedings. The "general principles" in the new Practice Direction include that AI (especially GenAI) must be used in a way that promotes the best interests of children in family law proceedings, and not be used in a way that may jeopardise the safety of families and children.
That could cause problems for litigants who, for example, reveal the identity of persons connected to family proceedings with an open source GenAI. That may be akin to a publication to the public domain that runs the risk of a contravention under s 114Q of the Family Law Act 1975 (Cth): see generally Mertz & Mertz (No 3) [2025] FedCFamC1A 222; FLC ¶94–285; Helmold v Mariya (No 2) Helmold & Mariya (No 2) [2025] FedCFamC1A 163; FLC ¶94–272; Tesar v Szep (No 3) [2026] FedCFamC1F 21 at [15] (Brasch J).
Otherwise, it should be noted that an expert will need to be given a copy of the new Practice Direction and must certify that it has been read.
Unlike other courts, however, there is no requirement for a court user, other than an expert witness, to disclose by way of statement, certification or otherwise the use of GenAI in the preparation of a document filed or relied on in a proceeding, unless requested to do so.
However, the person responsible for its creation, or with responsibility for the file (if this person is different) should be able to explain, if asked:
- whether AI was used;
- what tool was used;
- how the output was checked and supervised;
- how the principles in this Practice Direction have been observed.
There would appear to be little uniformity in Australia about this last issue. Practitioners will therefore have to keep up to date with the different practice and procedures in each jurisdiction in which they appear.
The link to the new FCAFCOA Practice Direction is here. Other Practice Notes and Directions mat be found under the Quick Links on the home page.
