By Natalie Cull

Separation can bring significant financial changes, particularly if you relied on your partner’s income during your relationship. If you’re struggling to cover your living expenses following a separation, you may be entitled to spousal maintenance.

Spousal maintenance is financial support paid by one party to their current or former spouse or de facto partner when that person is unable to adequately support themselves and the other party has the capacity to provide financial assistance.

Understanding your rights and obligations early can help you make informed decisions about your financial future.

What Is Spousal Maintenance?

Under the Family Law Act, a person may be required to financially support their former spouse or de facto partner if they cannot adequately meet their own reasonable expenses and the other person has the financial capacity to assist.

Spousal maintenance is assessed on a case-by-case basis. Being separated or experiencing financial difficulty does not automatically mean you are entitled to receive payments. Your individual circumstances, financial needs and your former partner’s ability to pay will all be considered.

How Is Spousal Maintenance Assessed?

When determining whether spousal maintenance may be appropriate, the court considers both the financial needs of the person seeking support and the financial capacity of the person who may be required to pay it.

Factors that may be considered include:

• Income and financial resources: Each party’s income, property, assets and other available financial resources.

• Age and health: Whether either party’s age or health affects their ability to work or support themselves.

• Caring responsibilities: Whether one party has primary responsibility for caring for a child or children of the relationship, and the need for that party to provide appropriate housing for the child/ren.

• Employment circumstances: Whether the relationship affected a person’s ability to work, develop their career or earn an income.

• Reasonable living expenses: Whether the person seeking maintenance can meet their reasonable expenses with their current financial resources, and whether those expenses are considered a suitable standard of living.

For example, one partner may have spent several years caring for the children while the other continued working and earning an income. Following separation, the stay-at-home parent may have limited employment opportunities and insufficient income to cover their living expenses.

In these circumstances, spousal maintenance may be worth exploring, depending on both parties’ financial circumstances.

What Can Spousal Maintenance Look Like?

Spousal maintenance can take different forms depending on the circumstances of the parties and the arrangements made.

It may involve regular payments to help cover ongoing living expenses or, in some circumstances, a lump-sum payment or another agreed financial arrangement.

The amount, frequency and duration of any support will depend on the individual circumstances. There is no automatic entitlement to a particular amount or a fixed period of maintenance.

Spousal maintenance is also separate from property settlement and child support. While these matters may be considered alongside one another when assessing a person’s overall financial position, they serve different purposes and are assessed under different legal principles.

When Should You Seek Legal Advice?

If you have recently separated and are concerned about your financial position, it is worth seeking legal advice as early as possible.

Understanding your options can help you determine whether you may be entitled to receive spousal maintenance or whether you may have an obligation to provide financial support to your former partner.

There are also legal requirements and time limits that may apply to spousal maintenance applications, so getting advice early can help you understand what may be available to you.

At Nikolovski Lawyers, we can help you understand your rights and obligations following separation and assess whether spousal maintenance may be relevant to your circumstances.

Need advice about spousal maintenance? Contact Nikolovski Lawyers to discuss your situation and understand your options.

By Amy Scanu

Have you experienced a psychological injury at work? The date it happened could make a difference to your claim.

On 1 July 2026 a number of amendments to the workers compensation scheme in NSW came into force that impact primary psychological injuries.

The key changes include:

1. The circumstances leading to psychological injury must now fit within the definition of one or more “relevant events”

These are:

• Being subjected to an act or threat of violence

• Being subjected to indictable (very serious) criminal conduct

• Witnessing a traumatic incident, the death/serious injury of a person at the scene of a traumatic incident or a prescribed death 

• Experiencing vicarious trauma

• Being subjected to sexual harassment or racial harassment

• Being subjected to bullying, and

• Being subjected to excessive work demands

2. Liability disputes will be determined by the Industrial Relations Commission

For claims regarding bullying, sexual harassment, racial harassment or excessive work demands. The Independent Review Office will fund legal representation for injured workers in the IRC.

3. Entitlement periods for weekly payments and medical expenses have been reduced

The entitlement to weekly payments is capped at 130 weeks. In some circumstances a worker may be eligible to receive an additional 52 weeks at a reduced rate.

The entitlement to medical expenses has been reduced to 1 year (previously 2 years) from the date of injury or the date the worker last receives weekly payments, whichever is the later.

4. The threshold to make a work injury damages claim has been increased to 25% whole person impairment

This is a significant increase from the 15% threshold for injuries prior to 1 July 2026, which will limit access to a damages claim for many injured workers. The threshold will continue to rise gradually over the next 3 years to 28%. 

Importantly this does not apply to claims for lump sum compensation for primary psychological injuries, for which the threshold remains 15% WPI.

What do injured workers need to know?

Firstly, if you are experiencing circumstances that may lead to psychological injury in the workplace, it would be beneficial to keep notes about each incident that occurs, including date and time, details of what happened, what was said, who was involved, and any witnesses. 

Secondly, the date the worker notifies the employer of their injury is critical and could make a significant difference to their entitlements. Early notification is key. This might be different to the date of injury used for a claim. 

If you are unsure whether or how these changes may apply to you, seek legal advice.

By Piper Ryan & Zoe Holdsworth

Think you’ve missed the deadline to make a workers’ compensation claim? Not necessarily.

Time limits are an important part of the workers’ compensation and work injury claims process, but there is a common misconception that once a particular time limit has passed, you automatically lose your right to make a claim.

The reality can be more complicated.

At Nikolovski Lawyers, we regularly speak with people who believe they are “too late” to make a claim, only to find that there may still be options available depending on their circumstances.

Workers’ compensation claims and the six-month time limit

For workers’ compensation claims, there is generally a six-month time limit that applies to making a claim.

This is an important deadline, and insurers may raise the issue when a claim is made outside that period — particularly where there is no clear explanation for the delay.

However, making a claim outside the six-month period does not necessarily mean your claim is automatically dead.

The legislation provides for certain exceptions that may allow a claim to be made outside the usual time limit. Whether an exception applies will depend on the individual circumstances of the worker and the reason for the delay.

Why might someone make a claim late? 

There are many reasons why a worker may not make a claim within the usual timeframe.

For example, an injury may initially seem relatively minor before its impact becomes more apparent over time. A worker may not immediately understand how significantly their injury could affect their ability to work or their life more broadly.

Other workers may not realise that they are eligible to make a workers’ compensation claim or may not even be aware that workers’ compensation is available to them.

This can be particularly relevant where an injury develops gradually or where the full extent of the injury does not become clear until later.

The important thing is not to assume that you have no options simply because six months have passed.

What about work injury damages and common law claims?

Workers’ compensation is not the only type of work injury claim where time limits are important.

A worker may also be entitled to pursue a work injury damages claim, commonly referred to as a common law claim, where the relevant requirements are met.

Generally, a work injury damages claim needs to be commenced within three years. However, as with workers’ compensation claims, there can be circumstances where a claim may be pursued outside the usual limitation period.

For example, the treatment and recovery process following a serious injury can take considerable time.

This can be particularly relevant for claims involving significant psychological injuries or injuries requiring surgery. A worker may need to undergo treatment or surgery and reach a point where their condition is sufficiently stable before the extent of their ongoing impairment can properly be assessed.

There can also be delays associated with the workers’ compensation claims process itself. The process involves a number of procedural steps, and these can sometimes take considerable time.

What should you do if you think you’ve missed the deadline?

The biggest mistake is assuming that it is too late without getting legal advice.

Time limits can be complicated, and the circumstances surrounding the delay can be important. There may be exceptions available under the relevant legislation, but these should be assessed on a case-by-case basis.

If you believe you may have missed the usual time limit for a workers’ compensation or work injury damages claim, it is worth speaking with a lawyer who specialises in workplace injury claims as soon as possible.

They can assess your circumstances, explain whether any exceptions may apply and advise you on what steps may be available.

Don’t assume your claim is over

A missed time limit can create an additional hurdle, but it does not necessarily mean you have lost your ability to make a claim.

If you have suffered a workplace injury and are unsure whether you are still within time to make a claim, seek legal advice as soon as possible.

The sooner your circumstances are assessed, the better positioned you may be to understand your options.

Nikolovski Lawyers can assist with workers’ compensation and work injury damages claims and help you understand your rights and the claims process.

By Chris Nikolovski

Mental health in the workplace has received increasing attention in recent years, and for good reason.

Psychological injuries are not new. For many years, people have experienced stress, trauma and psychological injury in the workplace without necessarily having the knowledge, language or support to talk about what they were experiencing.

Today, we have a much better understanding of mental health and the importance of seeking help when something isn’t right.

Directors can also be workers

A company director can wear many hats. They may be responsible for managing the business, but they can also perform day-to-day work just like other employees and are an integral part of the team.

Whether you work for a small company, or are a director of a large national or international company, your position as a director does not, itself, prevent you from being covered by workers’ compensation legislation.

This means if you suffer an injury in the course of your work, you may be entitled to make a workers’ compensation claim with the company for which you work.

Understanding whether you fall within the definition of a “worker” is therefore important.

Psychological injuries are real injuries 

A psychological injury can have a significant impact on someone’s ability to work and their day-to-day life.

Work-related mental health issues can arise in a number of circumstances, including workplace bullying, harassment, traumatic events, excessive work-related stress or other experiences connected to employment.

It’s important not to dismiss psychological symptoms simply because an injury cannot be seen.

If your work is contributing to a mental health condition, speaking up and seeking appropriate support is an important first step.

Can you make a workers’ compensation claim for a mental health condition? 

Depending on the circumstances, a psychological injury may give rise to a workers’ compensation claim.

However, workers’ compensation legislation contains specific requirements that need to be considered when determining whether a claim is available. The circumstances surrounding the injury, its connection to your employment and the applicable legislation will all be relevant.

This is why getting legal advice can be important if you believe your mental health has been affected by your work.

Don’t suffer in silence

One of the most important things you can do if you’re struggling with a work-related mental health issue is to speak to someone.

That might mean talking to your doctor, psychologist or another qualified health professional about what you’re experiencing. Professional support can help you understand what is happening and access appropriate treatment.

It can also be appropriate to get advice about your legal rights and whether you are entitled to make a workers’ compensation claim.

A claim may provide access to treatment and other forms of support that can assist you during your recovery.

Getting help is a sign of strength

We have come a long way in our understanding of mental health, but there is still work to be done to remove the stigma around psychological injuries.

If your work is affecting your mental health, you don’t have to simply carry it on your own.

Speak out, seek professional support and find out what options may be available to you.

At Nikolovski Lawyers, we can provide advice about workers’ compensation claims involving psychological injuries and help you understand your rights, options and procedure.

By Chris Nikolovski

When we think about workers’ compensation, we often think about employees. But what about company directors?

Many directors are surprised to learn that they are usually covered by workers’ compensation legislation as well. This is because a director of a corporation is also a ‘worker’ under the legislation. This means a director may have the same rights and entitlements as any other worker under the legislation. 

Being a director doesn’t automatically mean you’re excluded from the definition of a worker. If you meet the relevant requirements under the legislation, you may have access to the same workers’ compensation entitlements as other workers. 

Directors can also be workers

A company director can wear many hats. They may be responsible for managing the business, but they can also perform day-to-day work just like other employees and are an integral part of the team.

Whether you work for a small company, or are a director of a large national or international company, your position as a director does not, itself, prevent you from being covered by workers’ compensation legislation.

This means if you suffer an injury in the course of your work, you may be entitled to make a workers’ compensation claim with the company for which you work.

Understanding whether you fall within the definition of a “worker” is therefore important.

What about shareholders? 

A shareholder may not be a worker automatically, but if you are a shareholder of a company and work there then the same legislation applies to you as any other worker in that company.

The same principle can apply to shareholders.

The distinction is important because workers’ compensation legislation generally looks at the nature of the working relationship and the relevant statutory definitions, rather than simply the title you hold within a business.

The legislation that applies could be a state law or commonwealth so it is always important to obtain advice.

What about sole traders? 

A sole trader is different.

Unlike a director of a company, a sole trader is generally not considered a worker under the workers’ compensation legislation as if they are the entity itself.

This distinction between operating as a sole trader and operating through a company can have significant implications when it comes to workers’ compensation coverage.

Sole traders that are not incorporated should consider their own private insurance such as income protection, but they will be personally responsible for this.

Injured at work? Know your rights

If you’re a company director or shareholder that is also considered a worker, and you’ve suffered an injury you should obtain legal advice about your rights.

Workers’ compensation legislation can be complex, and whether you are covered will depend on your particular circumstances and the relevant legislation.

At Nikolovski Lawyers, we can provide advice about your rights, obligations and entitlements and help you understand whether you may be covered by workers’ compensation.

By Chris Nikolovski

When we talk about workers’ compensation, the focus is often understandably on the injured worker. But a workplace injury can affect more than one person.

For an employer, having a worker injured can mean losing a skilled and experienced member of the team, managing additional workloads and navigating the workers’ compensation and return-to-work process.

While the workers’ compensation insurer may cover payments to an injured worker while they are unable to work, the impact on an employer can extend beyond the worker’s wages. 

What should an employer do when a worker is injured?

If an employee tells you they have suffered a workplace injury, it’s important to take the report seriously and act promptly.

Employers have obligations to report workplace injuries to their workers’ compensation insurer as soon as possible. In certain circumstances, serious workplace incidents may also need to be reported to SafeWork NSW.

Beyond these reporting obligations, the way an employer responds to an injury can make a significant difference.

Supporting an injured worker  

It can be easy for an employer’s initial reaction to be defensive, particularly where they believe the workplace did nothing wrong or question the circumstances surrounding the injury.

However, taking a supportive and constructive approach is generally more productive.

The focus should be on:

• Making sure the worker receives appropriate medical attention
• Reporting the injury promptly
• Maintaining communication with the worker
• Understanding their capacity for work
• Supporting a safe and appropriate return to work

A workplace injury doesn’t necessarily mean an employee will be away from work indefinitely. Depending on their circumstances and medical capacity, they may be able to return to some duties while they recover.

The importance of return to work 

For both the worker and the employer, the goal should ultimately be a safe return to work.

For the worker, returning to the workplace can provide financial, social and personal benefits. For the employer, it can mean retaining an experienced and skilled employee and helping the business continue to operate effectively.

A return-to-work plan should take the worker’s current capacity into account and may involve temporarily modifying their duties, hours or working environment.

It’s important for employers to approach this process carefully and ensure they understand their legal obligations throughout.

Employers have rights and responsibilities too  

Workers’ compensation is designed to support injured workers, but employers also need to understand their own rights and responsibilities.

If you are an employer dealing with a workplace injury or workers’ compensation claim, obtaining legal advice early can help you understand your obligations, navigate the claims process and appropriately manage the return-to-work process.

At Nikolovski Lawyers, we assist employers and workers with workers’ compensation matters and can provide advice about your rights and obligations at every stage of the process.

By Mikaela Frame

Whether you’re starting a new business, leasing a commercial premises or purchasing an existing business, understanding your lease is an important part of protecting your interests.

A common misconception is that you only need a lawyer to look at a lease if it runs for three years or more. This isn’t the case. Even a shorter-term lease can contain provisions that have significant financial and legal consequences.  

Should a lawyer review your lease?

Whether you’re a landlord or a tenant, having a lawyer review a lease before you sign it can help you understand exactly what you’re agreeing to.

For tenants, a lawyer can identify provisions that may be particularly disadvantageous, including obligations around rent, outgoings, repairs, maintenance, make-good requirements, termination and renewal.

For landlords, legal advice can help ensure the terms of the lease comply with applicable legislation and that the agreement is properly structured. Certain provisions may be unenforceable or inconsistent with legislation, so getting advice early can help avoid problems later.

Importantly, legal advice isn’t only useful when a lease is being drafted. If you’ve already received a lease prepared by the other party, you can still have it reviewed before signing.

Retail lease vs commercial lease: what’s the difference?  

Retail and commercial leases are not necessarily the same.

Retail leases are subject to additional legislation and requirements that can place specific obligations and restrictions on landlords. Depending on the premises and the type of business being operated, a lease may fall within the relevant retail leasing legislation.

Examples of businesses that may operate under a retail lease include:

• Hairdressers and barbers
• Newsagents
• Restaurants and cafés
• Other businesses operating from retail premises

Non-retail commercial leases can cover a much broader range of premises and businesses, including:

• Industrial warehouses
• Data centres
• Medical consulting rooms
• Other commercial or warehouse premises

Determining which type of lease applies is important, as the legal requirements can be significantly different.

Buying a business with an existing lease 

If you’re purchasing a business that operates from leased premises, don’t assume that the lease automatically transfers to you with the purchase.

The sale of a business and the transfer of a lease are separate legal matters. Depending on the terms of the existing lease, the landlord may need to provide consent to an assignment, or a new lease or revised terms may need to be negotiated.

This is why it’s important to obtain legal advice before completing the purchase of a business.

A lawyer can review the existing lease, identify your obligations, determine whether the lease can be transferred and help you understand what needs to happen before the purchase proceeds.

Get advice before you sign  

A lease is more than just an agreement about how much rent you’ll pay. It can set out significant obligations that continue throughout the life of your tenancy.

Whether you’re a tenant entering into a new lease, a landlord preparing an agreement, or a business purchaser taking over an existing premises, getting legal advice early can help you understand your position and avoid costly issues down the track.

At Nikolovski Lawyers, we can assist with reviewing, negotiating and advising on commercial and retail leases, whether you’re entering into a new lease or dealing with an existing agreement.

By Bethany Turnbull

When people hear the word “divorce”, they often assume it means sorting out everything that happens when a relationship ends.

However, under Australian family law, divorce has a much narrower meaning.

Divorce in Australia is simply the legal end of a marriage.

It does not determine how the property of the marriage should be divided, or what arrangements should be made for the children going forward. Those matters are dealt with through separate legal processes, although they may occur around the same time as the divorce.

So, in simple terms, once a divorce order becomes final, it means that you are no longer legally married to your former spouse.  

Australia has a no-fault divorce system

Australia operates under a no-fault divorce system. This means the Court is not concerned with why the marriage ended or who was responsible for the breakdown of the relationship.

Instead, there is only one ground for divorce: the court must be satisfied that the marriage has broken down irretrievably.

This is established by the parties being separated for at least 12 months and one day, with no reasonable likelihood of reconciliation.

Sole or joint divorce application?   

There are two ways to apply for a divorce in Australia: a sole application or a joint application.

A sole application is where one spouse applies for the divorce on their own. That person is responsible for preparing and filing the application, as well as ensuring the other spouse is formally served with the divorce documents. This is often the more common option, particularly where communication has broken down or one party simply does not wish to participate in the process.

A joint application, on the other hand, is where both spouses apply for divorce together. This can make the process more straightforward because there is no requirement to formally serve documents on the other party, and there is often less administrative back-and-forth. Another practical benefit is that the court filing fee is typically shared equally between both parties.

Regardless of whether the application is sole or joint, the legal requirements and outcome remain the same.

Can you be separated while living under the same roof?  

Yes.

Many people are surprised to learn that you can be considered separated even if you continue living in the same home.

This is referred to as “separation under one roof” and can occur for a number of reasons, such as financial pressures, parenting arrangements, or simply convenience.

Living under the same roof does not necessarily prevent you from applying for a divorce. However, where separation under one roof is claimed, the Court will require additional information or evidence about the circumstances of the separation.

What happens if you have children?   

If there are children of the marriage under the age of 18, the Court must be satisfied that appropriate arrangements have been made for their care, welfare and development before granting the divorce.

Importantly, a child does not need to be biologically related to both spouses to be considered a “child of the marriage”. A child of the marriage can include a child of either spouse, an adopted child, or another child who was treated by both spouses as a child of their family immediately before separation.

The Court is not looking for perfect parenting arrangements. It needs to be satisfied that appropriate arrangements are in place and that the children’s interests are being considered.

Once the court is satisfied of this, the divorce can proceed and ultimately become final.

Divorce is only one part of separating

It is important to remember that getting divorced does not automatically resolve your property settlement or parenting arrangements. These are separate legal matters and may require their own agreements or Court orders.

If you are considering divorce, obtaining legal advice early can help you understand your options, the steps involved, and any other legal matters that may need to be addressed following separation.

Whether you need advice about making a divorce application or your rights following separation, Nikolovski Lawyers can provide advice and guidance throughout the process.

By Natalie Cull

On the surface, a dismissal might seem simple.

However, a dismissal can give rise to different legal claims, and understanding the distinction between them is important for both employees and employers.  

Two of the most common claims arising from a dismissal are unfair dismissal and general protections (adverse action) claims. While both may arise from the same set of circumstances, they involve very different legal considerations.  

Unfair Dismissal Claims 

An unfair dismissal claim focuses on the fairness of the dismissal itself. 

When determining whether a dismissal was unfair, the Fair Work Commission will consider matters such as: 

– whether there was a valid reason for the dismissal; 

– whether the employee was notified of that reason; 

– whether the employee was given an opportunity to respond to allegations; and 

– whether a fair process was followed. 

In simple terms: Was the dismissal harsh, unjust, or unreasonable? 

There are also eligibility requirements that must be met before an employee can bring an unfair dismissal claim. Generally, an employee must: 

– be a national system employee; 

– have completed the minimum employment period (usually six months, or twelve months for a small business employer); and 

– earn below the high-income threshold, unless they are covered by an award or enterprise agreement. 

General Protections Claims   

General protections claims, often referred to as an ‘adverse action’ claim, involve a different enquiry. 

Rather than focusing on whether the dismissal was fair, the focus is on why the employer made the decision. 

The relevant question is whether the employee was subjected to adverse action, including dismissal, because they exercised a workplace right or possessed a protected attribute. 

Examples may include circumstances where an employee: 

– made a complaint or enquiry about their employment; 

– exercised a workplace right; 

– took personal or carers leave; 

– sought to access a workplace entitlement; or 

– was treated adversely because of a protected attribute such as their age, sex, race, disability, pregnancy or family responsibilities. 

If a prohibited reason formed part of the employer’s decision-making process, a general protections claim may arise. 

What remedies are available?  

Compensation and reinstatement may be available in both unfair dismissal and general protections matters. However, there is a significant difference when it comes to compensation. 

In unfair dismissal matters, compensation is generally capped at the lesser of 26 weeks’ remuneration or half of the high-income threshold. 

By contrast, this statutory cap does not apply to general protections claims. Depending on the circumstances, the potential compensation available may therefore be significantly greater. 

The most important thing employees and employers need to know is that the clock starts ticking from the date of dismissal. 

For unfair dismissal applications, they must generally be commenced within 21 days of the dismissal taking effect. The same 21-day timeframe applies to dismissal-related general protections claims. 

While extensions may be available in limited circumstances, they are not easily obtained. Delaying legal advice can therefore have significant consequences. 

Early Advice Can Make All The Difference   

Identifying the most appropriate avenue following a dismissal is not always a simple exercise, especially where both unfair dismissal and general protections frameworks may appear to apply. 

However, it is important to understand that you can only bring one claim, not both, so getting legal advice early is key to deciding which option is the right one. 

Seeking advice at an early stage helps employees to understand what claims may be available, what evidence is needed, the time limits that apply, and make informed strategic decisions before any proceedings are commenced. 

For employers, legal advice can assist in identifying and managing any potential claims that could be brought because of a current or anticipated dismissal, and to put steps in place to manage and reduce risk early on. 

Key Takeaway 

The distinction between these claims can be summarised simply: 

Unfair dismissal looks at the process. General protections looks at the motive. 

If you need employment advice, whether you are an employee or an employer, get in touch for a confidential chat. When you only have 21 days to act, getting advice early can make all the difference. 

By Natalie Cull

ChatGPT seems harmless. You’re just tidying up an email, summarising some documents, or trying to make sense of something your lawyer has sent you. 

What many people don’t realise is that uploading information into an AI platform can have serious consequences for their legal matter. 

When you send information to your lawyer, it is confidential. You can see it, your lawyer can see it, and it is protected within a secure, lawyer-client relationship. However, when you copy, paste, and upload that same information into an AI platform that is not secure, you may be moving it outside that protected space. 

Once information leaves that protected space, you lose control over what happens next. It may be stored in a database. It may be reviewed by the platform. It may become accessible to third parties. In some circumstances, it may even be used to train future AI systems. 

That raises an important question: is the information truly still confidential? 

Why Confidentiality Matters

 Legal privilege is what protects communications between you and your lawyer from being disclosed or used against you. It is one of the fundamental protections that underpins our solicitor-client relationship and allows you to seek legal advice openly and honestly. 

However, legal privilege can only exist if confidentiality is maintained. 

If legal advice, your instructions, or documents relating to your legal matter are uploaded into an unsecured AI platform, there is a risk that confidentiality may be compromised. If confidentiality is lost, legal privilege may be challenged and, in some circumstances, lost altogether. 

This is not simply a possibility. It is a reality.  

Courts Are Paying Attention  

Earlier this year, a United States court found that documents created using Claude, an AI platform, were not protected by legal privilege because the platform’s terms of service undermined the confidentiality required for privilege to apply. 

Similarly, courts in the United Kingdom have issued similar warnings, noting that uploading information to open-source AI platforms may result in a loss of confidentiality and privilege. 

Australian courts have also entered the conversation. 

The Supreme Court of New South Wales has expressed concern about AI “hallucinations” and the lack of safeguards surrounding confidentiality, privacy, and legal privilege. The Court has prohibited the use of generative AI when drafting affidavits, witness statements, and other evidentiary material. Parties are also required to confirm that AI was not used to generate those documents. 

This means that if you provide your lawyer with a statement that has been prepared using AI, there is a real possibility that it cannot be used. 

The Federal Circuit and Family Court of Australia have adopted a measured approach to AI use, recognising its potential benefits while emphasising that Court users (whether you are a lawyer or not) remain responsible for any material produced with its assistance. Whether you are a lawyer or a self-represented litigant, caution is required when using it. 

Additional Risks in Family Law Matters 

Family law proceedings involve additional considerations. 

Under the Family Law Act 1975 (Cth), it an offence to publish or communicate to the public an account of the matter, which includes information that identifies a party, witness, child, or other person involved in family law proceedings. 

Many people do not realise that entering identifying information into a generative AI platform may create a risk that the information becomes accessible beyond the intended audience. Depending on the platform and how the information is handled, this could potentially expose confidential information and create legal consequences, such as committing an offence.   

So, What Should You Do? 

As a general rule, we recommend you do not upload any of the following into an AI platform: 

– legal advice or emails from your lawyer; 

– documents connected to your matter; 

– instructions or background information relating to your matter; 

– court documents; 

– witness statements or affidavits; and 

– anything you would not be comfortable being published online. 

AI can be a useful tool, but it is not always a safe place for sensitive legal information. 

If you are ever unsure, speak to your lawyer. A two-minute conversation today may prevent a much larger problem later on.