Connolly v Connolly [1966] HCA 47

Connolly v Connolly [1966] HCA 47

Although the language of s. 92 of the Marriage Act 1961 is general, it must be construed in its context in Pt VI of the Marriage Act and subject to the Constitution and s. 15A of the Acts Interpretation Act. On that construction it does not exceed Commonwealth legislative power, is valid under s. 76 (ii.) and s. 77 (iii.) of the Constitution, and validly authorizes the Supreme Court of New South Wales to determine the applicant's application, which depended on s. 89 of the Marriage Act.

Jurisdiction
Australia
Procedural Posture
Application Pursuant to S. 92 (1) (b) of the Marriage Act 1961 Cth for a Declaration That a Child Was a Legitimated Person / Cause Removed to the High Court by Operation of S. 40 a of the Judiciary Act 1903 1960 After a Constitutional Question Arose
Outcome
Section 92 of the Marriage Act 1961 declared valid; the order sought by the applicant declared to be an order that could be made by the Supreme Court of New South Wales; cause remitted to the Supreme Court of New South Wales; each party to bear his or her own costs in the High Court.
Legal Topics
['validity of S. 92 of the Marriage Act 1961' 'legitimation by Subsequent Marriage' 'investment of State Supreme Court With Federal Jurisdiction' 'removal and Remittal']
['constitutional Law' 'family Law' 'federal Jurisdiction'] ['validity of S. 92 of the Marriage Act 1961' 'legitimation by Subsequent Marriage' 'investment of State Supreme Court With Federal Jurisdiction' 'removal and Remittal']

Case Brief

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Procedural Posture

Application Pursuant to S. 92 (1) (b) of the Marriage Act 1961 Cth for a Declaration That a Child Was a Legitimated Person / Cause Removed to the High Court by Operation of S. 40 a of the Judiciary Act 1903 1960 After a Constitutional Question Arose

Legal Issues

  1. 1 ['Whether s. 92 of the Marriage Act 1961 is a valid law of the Commonwealth.' "Whether s. 92 validly authorizes the Supreme Court of New South Wales to hear and determine the applicant's application for a declaration that a child was a legitimated person."]

Ratio Decidendi

Although the language of s. 92 of the Marriage Act 1961 is general, it must be construed in its context in Pt VI of the Marriage Act and subject to the Constitution and s. 15A of the Acts Interpretation Act. On that construction it does not exceed Commonwealth legislative power, is valid under s. 76 (ii.) and s. 77 (iii.) of the Constitution, and validly authorizes the Supreme Court of New South Wales to determine the applicant's application, which depended on s. 89 of the Marriage Act.

Court Disposition

Section 92 of the Marriage Act 1961 declared valid; the order sought by the applicant declared to be an order that could be made by the Supreme Court of New South Wales; cause remitted to the Supreme Court of New South Wales; each party to bear his or her own costs in the High Court.

Orders

  • ['Declare that s. 92 of the Marriage Act 1961 is a valid law of the Commonwealth.' 'Further declare that the order sought by the applicant, James Thomas Connolly, is an order that could be made by the Supreme Court of New South Wales under the said s. 92.' 'Order pursuant to s. 45 of the Judiciary Act 1903-1960 that...