8 Having regard, in particular, to the provisions of ss. 6, 18 of the Act as to the cesser of de facto relationship, one should note, here, what was said by Mahoney JA (as he then was) - with whom, on this aspect of the case, both Hope and McHugh JJA agreed - in Hibberson v. George (1988-1989) 12 Fam LR 725, 739-740:
"The Act came into effect on 1 July 1985. The learned judge held that it did not apply because, from May 1985, there did not exist the de facto relationship upon the basis of which the Act operated and it had no retrospective effect.
It was submitted to the learned judge, and the submission repeated here, that although the parties had lived apart from each other in separate homes from May 1985 onward, the relevant relationship had not ceased. The de facto relationship defined by s.3 of the Act is a relationship 'of living or having lived together as husband and wife on a bona fide domestic basis'. The submission was, in effect, that a relationship existed between them; that they were apart only until they decided whether the relationship should end or continue; and that the decision to end it did not occur until after 1 July 1985.
The learned judge decided against Ms. Hibberson in this regard. In my opinion, his conclusion was correct. What is involved is 'living … together as husband and wife on a bona fide domestic basis'. It is correct, as Mr. Hamilton QC has submitted, that the relevant relationship may continue notwithstanding that the parties are apart for example on holidays. And he referred to the law which was developed in the context of marriage upon the distinct question, viz, whether physical separation constituted desertion.
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incident which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue."
9 It is convenient, here, to record that, in an Affidavit sworn by her on 18 August 1999, the Appellant deposed (inter alia) as follows:
"17. I cohabited in our premises together at 40 Eyre Street, Chifley with the Plaintiff and both Lisa and Paul until September, 1997 except for a period in 1991 when I left the premises for approximately one year to have time to think about the relationship. I remember that I left the premises for approximately one year. In the Defence it states two years, but I now recall that it was only one year. During this time we were still seeing each other, sleeping with each other, having sex with each other, the only difference was that I resided in Housing Commission (sic) at Maroubra during this time. It was only that I was having such a difficult time with Paul that I needed a break from living on a day to day basis with him. He had come to take me for granted. He would not help with cleaning, washing, come home at any time he wanted, would accuse me of having affairs with students that boarded at our home, threaten to shoot me, calling me a Lesbian. He was very abusive and I needed a physical break from him. I wanted him to learn that I did not want to be treated the way he did."
10 Given the provisions of ss. 6,18 of the Act and the views expressed by Mahoney JA in Hibberson v. George, it seems to me to be clear from the whole of the evidence that, for the purposes of the Act,there was not one single, albeit discontinuous, de facto relationship between the parties extending from 1965 to 1997, but two, albeit distinct, relevant de facto relationships, the first commencing in late 1984 or early 1985 shortly prior to, or at the time of, the acquisition of the property in Eyre Street, Chifley and ending in 1991, and the second commencing at some time in 1993 and ending in about September 1997.
11 As the former of those two de facto relationships ended in 1991, the provisions of s.18 of the Act would preclude that relationship providing a foundation for an application pursuant to s.20 of the Act unless leave to make such an application were sought and granted to one or other of the partners upon the basis that the Court considered that greater hardship would be caused to the partner so applying for leave if the leave were not granted and would be caused to the other partner if that leave were granted. In the present case, no such application was made and no such leave was granted.
12 In Roy v. Sturgeon supra, when dealing with a submission on behalf of the then plaintiff that she was entitled to have regard had to "contributions" made by her prior to the commencement of the relevant de facto relationship I said NSWLR 464-465; Fam LR 276-277:
"So far as Mr. Young's first submission is concerned, it seems to me that, although the provisions of s.20 do not expressly limit the court to having regard to 'contributions' made only during the course of the 'de facto relationship', nonetheless there are indications in the Act, and, in particular, in s.20 itself, that the range of relevant 'contributions' should be regarded as so limited. Thus, both s.15 and s.17 of the Act expressly direct attention to the period 'the parties to the application have lived together'. Even more to the point is the reference in s.20(1)(b) to a partner's 'contributions' as 'home maker or parent … to the welfare of the other … partner or to the welfare of the family …' a reference which seems to me to contain within its own terms a limitation as to the period during which any contributions might have been made.
Support for such an approach is provided, as well, by the context out of which the report, and, later, the Act, emerged, and as well by the evident policy of the Act that, while the court was to be authorised to provide a remedy in certain perceived areas of injustice, nonetheless the relationship between the de facto partners was not to be elevated to one equivalent in status to that of parties to a marriage. As to the former, it is to be observed that, while it is true that the provisions of the Act are directed towards more than 'getting over Allen v. Snyder ' [1977] 2 NSWLR 685 nonetheless it is equally true (see report at 98-102, 146-151) to say that the provisions of s.20 of the Act have their origins in the criticisms made by judges of this Division of the Court (see eg, Murray v. Heggs (1980) 6 Fam LR 781; Blanchfield v. Public Trustee (Wootton J 10 April 1981 unreported)); Muschinski v. Dodds (Waddell J as he then was, 1 July 1981, unreported) as to the injustices which might arise as the result of applying orthodox principles of law and equity to questions relating to the property of persons who have lived in a 'de facto relationship'.
The fact that it is not the policy of the Act to elevate to the status of a 'de facto partner' to that of a party to a marriage, would in my view, be enough to caution one against too readily embracing the decisions of the Family Court of Australia as to the matters to which that Court might legitimately have regard when dealing with applications under s.79 of the Family Law Act 1975 (Cth). That caution is, however, reinforced by the fact that there are differences between the language of s.20 of the Act on the one hand, and of s.75(2) and s.79(4) of the Family Law Act 1975 (Cth) on the other, which differences are, in my view, significant. Nor need I rely solely on my own view as to the significance of the inclusion, by reference, in s.79(4) of the Family Law Act 1975 (Cth) of the provisions of s.75(2)(k) and s.75(2)(o) of that Act, for, as the extract from the judgment in In the Marriage of Olliver which I set out below makes clear, the Full Court of the Family Court of Australia has relied on the latter provisions as a justification for having regard to any pre-marital cohabitation between the parties to an application under s.79 of the Family Law Act 1975 (Cth) - one adds that the similar provisions of s.25(1) of the Matrimonial Causes Act 1973 (UK) seem to be relied upon by the judges of the Family Division of the High Court of Justice in England for the same purpose: see Kokosinski v. Kokosinski and Foley v. Foley ."