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Privacy Invasion During Divorce and Separation

Your spouse accessed your emails, tracked your phone, or read your private messages. Australian law now provides a civil remedy.

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When a Relationship Ends, Privacy Invasions Often Begin

Separation and divorce are among the most common settings for serious invasions of privacy. A spouse or former partner who once had legitimate access to shared devices, accounts, and information may continue to access them after the relationship breaks down. Some go further: installing tracking software, reading private emails, downloading financial records, or monitoring communications with lawyers.

Since 10 June 2025, the statutory tort for serious invasion of privacy under Schedule 2 of the Privacy Act 1988 (Cth) gives individuals a direct civil right of action in these circumstances. If your spouse or former partner has intentionally or recklessly invaded your privacy, you may be entitled to compensation, an injunction to stop the conduct, and in serious cases, exemplary damages. The tort does not require you to prove financial loss. The invasion itself is actionable.

The following sections outline the application of the statutory tort to privacy invasion during divorce and separation, how tort claims interact with family law proceedings, and the critical question of whether evidence obtained through a privacy invasion is admissible in the Family Court. If you need to speak with a privacy solicitor, our confidential initial assessment is available at a fixed fee of $770.

The clock is ticking. You may have as little as 12 months from the date you became aware of the invasion to commence proceedings. See our time limits page for details.

Limitation periods are strict: as little as 12 months from awareness.

If your spouse or former partner is accessing your accounts, tracking your location, or monitoring your communications, do not delay.

How the Statutory Tort Applies in Divorce and Separation

Three common patterns of privacy invasion during relationship breakdown.

Digital privacy protection during divorce proceedings

Accessing Emails, Messages, and Accounts Without Consent

<p>After separation, your spouse may retain passwords or use shared devices to read your emails, text messages, social media accounts, or cloud storage. This conduct can constitute <strong>intrusion upon seclusion</strong> under clause 7 of Schedule 2 if it involves deliberate, unauthorised access to private information.</p><p>The fact that your spouse previously had access (through a shared device or a password you once provided) does not necessarily mean that access remains authorised after separation. Consent can be withdrawn. Continued access after withdrawal of consent is the kind of conduct the tort is designed to address.</p><p>This applies equally to accessing communications with your lawyer. Intercepting privileged legal communications during divorce proceedings is an especially serious form of intrusion.</p>

Privacy law and family law intersection consultation

Surveillance, Tracking, and Covert Monitoring

<p>Location tracking, spyware on phones, hidden cameras in the home, GPS devices on vehicles, and monitoring software on shared computers are all increasingly common during contested separations. These forms of surveillance can constitute <strong>intrusion upon seclusion</strong> under the statutory tort.</p><p>The tort applies regardless of whether the surveillance breaches state surveillance device legislation. Even where state law does not criminalise the conduct (for example, external CCTV surveillance of a former partner's new home in Victoria), the Commonwealth tort may still provide a civil remedy if the intrusion is serious, intentional or reckless, and involves a matter in which the plaintiff had a reasonable expectation of privacy.</p><p>If surveillance is ongoing, an <a href='/urgent-privacy-injunctions'>urgent privacy injunction</a> may be available to restrain the conduct before trial.</p>

Legal defence for privacy invasion allegations

Defending a Privacy Claim During Divorce Proceedings

<p>If you have been accused of invading your spouse's privacy during separation, you are not without options. The statutory tort includes defences and exemptions that may apply. Implied consent, lawful authority, necessity, and defence of persons or property are all available under Part 2 of Schedule 2.</p><p>In some cases, the conduct may not meet the <strong>seriousness threshold</strong> required by the tort. Accessing a shared device before separation to obtain financial disclosure documents, for example, may not constitute a "serious" invasion depending on the circumstances. The court must weigh all relevant factors, including the purpose of the conduct and whether the information was already known or accessible.</p><p>Defendants may also apply for <strong>pre-trial determination of exemptions</strong> under Part 3 of Schedule 2, which can resolve the matter before a full hearing. We act for both plaintiffs and defendants in these claims.</p>

The Critical Question: Admissibility of Illegally Obtained Evidence in Family Court

Evidence obtained through privacy invasion may still be admissible

This is the point that most people find surprising and, understandably, frustrating. The Family Court of Australia operates under the Family Law Act 1975 (Cth) and the Evidence Act 1995 (Cth). Under section 138 of the Evidence Act, evidence obtained improperly or in contravention of Australian law is not automatically excluded. The court has a discretion to admit the evidence if the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way.

In practice, the Family Court frequently admits evidence obtained through one spouse accessing the other's emails, phone, or financial records, particularly where the evidence is relevant to property disclosure obligations or the welfare of children. The court weighs factors including the seriousness of the impropriety, the importance of the evidence, and whether it could have been obtained lawfully (for example, through subpoena or disclosure orders).

This means your spouse may be able to use improperly obtained evidence in family law proceedings and you may simultaneously have a civil claim against them under the statutory tort for the manner in which they obtained it. These are separate proceedings with separate remedies.

Running a tort claim alongside family law proceedings

The statutory tort claim is brought in the Federal Court of Australia or the Federal Circuit and Family Court. It is a civil claim for damages and, where appropriate, injunctive relief. It runs independently of any family law property settlement, parenting dispute, or divorce proceeding.

There are tactical considerations on both sides. For plaintiffs, a tort claim (or the credible prospect of one) may discourage ongoing invasive conduct and strengthen your position in settlement discussions. A pre-action demand letter, available at a fixed fee of $990, can serve as a formal notice that the conduct is actionable and must stop.

For defendants, the existence of family law proceedings does not provide a blanket justification for accessing a spouse's private information. The court will consider the purpose of the conduct, but also its proportionality. There are lawful mechanisms within the family law system for obtaining financial disclosure, including orders for discovery, subpoenas, and notices to produce. Resorting to self-help by accessing a spouse's accounts may not satisfy the necessity defence or the lawful authority defence under the statutory tort.

Where privacy invasion overlaps with defamation

In some separation disputes, a spouse does not merely access private information but also publishes it: to family members, on social media, or to mutual acquaintances. Where that publication damages the plaintiff's reputation, a defamation claim may run alongside the privacy tort claim. The statutory tort and defamation operate under different legal frameworks, but they can arise from the same facts. Truth is a complete defence in defamation but is not a defence to the statutory tort. Private information that is accurate may still ground a privacy claim. See our comparison page for a detailed explanation of how the two causes of action differ.

Family violence and the necessity defence

The statutory tort includes a defence of necessity where the defendant reasonably believed the invasion was necessary to prevent or lessen a serious threat to the life, health, or safety of a person. This defence expressly contemplates domestic and family violence emergencies. A person who accesses a partner's phone to document threats, or who installs a camera to record violent behaviour, may have a defence to a privacy tort claim if the conduct was proportionate and directed at preventing harm. The defence is fact-specific and must be assessed on the circumstances of each case.

Discretion is standard practice.

All communications are confidential. Initial assessments are conducted by a solicitor, not a paralegal, and are protected by legal professional privilege.

What Makes the Statutory Tort Different

Key features of the civil privacy action under Schedule 2 of the Privacy Act 1988 (Cth) as they apply in divorce and separation.

No Proof of Damage Required

The statutory tort is actionable per se. You do not need to prove financial loss, psychiatric injury, or any other form of damage. The serious invasion of your privacy is sufficient.

Truth Is Not a Defence

Unlike defamation, it does not matter whether the information your spouse accessed or published was accurate. Private information is protected regardless of its truth.

Injunctions to Stop Ongoing Conduct

If your former partner is currently accessing your accounts or conducting surveillance, the court may grant an urgent injunction to restrain the conduct before trial.

Damages Up to Approximately $500,000

Non-economic loss damages are capped at approximately $500,000. Exemplary damages may be awarded in addition in cases of serious or flagrant misconduct.

Broad Defendant Coverage

You can bring a claim against any person, not only APP entities. This includes your spouse, their new partner, a private investigator acting on their instructions, or anyone else involved.

Runs Independently of Family Law

The tort claim is separate from your property settlement, parenting proceedings, or divorce. It can be commenced and resolved on its own timeline and in its own forum.

Frequently Asked Questions: Privacy Invasion During Divorce

It may be, depending on the circumstances. Accessing another person's email without consent can constitute intrusion upon seclusion under clause 7 of Schedule 2 if the access was intentional or reckless and involves a matter in which you had a reasonable expectation of privacy. If you previously shared a password, the question is whether consent to use that password continued after separation. In many cases, it clearly did not. The court will assess all relevant factors, including the seriousness of the intrusion and the purpose for which the access was made. We assess these matters in detail during a confidential initial assessment.

Potentially, yes. The Family Court has a discretion under section 138 of the Evidence Act 1995 (Cth) to admit evidence obtained improperly or in contravention of law. In practice, the Family Court often admits such evidence where it is relevant to property disclosure or the welfare of children. However, the fact that the evidence may be admissible in family law proceedings does not prevent you from bringing a separate civil claim under the statutory tort for the invasion of privacy involved in obtaining it. These are distinct legal proceedings with different purposes.

Installing a tracking device on your vehicle without consent is likely to constitute intrusion upon seclusion under the statutory tort. It may also be a criminal offence under state surveillance device legislation in most jurisdictions. The statutory tort provides a civil remedy (damages and injunctive relief), while state legislation provides criminal penalties. You may wish to report the matter to police in addition to considering a civil claim. If the tracking is ongoing, an urgent privacy injunction may be available to restrain the conduct. See also our page on phone and device tracking.

They may be able to. The statutory tort does not contain an exception for gathering evidence in family law disputes. Accessing another person's phone without consent is the type of conduct that may constitute intrusion upon seclusion. However, several defences may be available depending on the facts. If the information related to joint financial affairs and you had a reasonable basis for accessing it, the seriousness threshold may not be met. In limited circumstances, the necessity defence or lawful authority defence may apply. We act for defendants in these claims and can assess your position. There are lawful mechanisms within the family law system for obtaining financial disclosure, and reliance on self-help measures carries risk.

No. The statutory tort commenced on 10 June 2025 and applies only to conduct occurring on or after that date. If the invasion of your privacy occurred before commencement, the tort does not apply. However, if the conduct is ongoing (for example, your spouse continues to access your accounts or maintain surveillance after 10 June 2025), the portion of the conduct occurring after commencement may be actionable.

The limitation period is one year from the date you became aware (or ought reasonably to have become aware) of the invasion, or three years from the date of the invasion, whichever expires first. The court may extend the period up to a maximum of six years from the date of the invasion in certain circumstances. These time limits are strict. If you suspect a privacy invasion has occurred, seek advice promptly. See our time limits page for full details.

Yes. The statutory tort is a civil remedy and operates independently of any family violence intervention order or protection order. In fact, conduct that breaches an intervention order (such as ongoing surveillance or monitoring) may support a finding that the invasion was intentional and serious. The two proceedings serve different purposes: the intervention order is protective, while the tort claim provides compensation and may include injunctive relief.

Disclosing another person's private medical information without consent may constitute misuse of personal information under clause 6 of Schedule 2. Health information is among the most sensitive categories of personal information, and its disclosure is likely to be regarded as serious. The fact that the information was shared with family members rather than published broadly does not prevent a claim, though the extent of disclosure is a factor the court may consider when assessing seriousness and damages. See also our page on leaked medical records and misuse of private information.

We offer fixed fee entry points. A confidential initial assessment is $770 (inclusive of GST). A pre-action demand letter is $990 (inclusive of GST). If the matter proceeds to court, costs will depend on the complexity of the claim. We provide a clear costs estimate before any litigation commences. Details of our fee structure are available on our initial assessment page and damages claims page.

The Office of the Australian Information Commissioner (OAIC) accepts complaints about breaches of the Australian Privacy Principles (APPs), but only against APP entities (generally organisations with an annual turnover exceeding $3 million, health service providers, and Commonwealth government agencies). Your former spouse is not an APP entity. The OAIC complaint pathway does not apply to most privacy invasions by individuals. The statutory tort under Schedule 2 is the appropriate avenue. See our comparison of the two pathways for more detail.

Fixed fee entry. No obligation beyond the initial assessment.

Confidential initial assessment: $770. Pre-action demand letter: $990. We act for both plaintiffs and defendants across Australia.

Disclaimer: The content of this page is intended to provide general information only and does not constitute legal advice. You should seek specific legal advice regarding your individual circumstances.

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