Brown and Burke

In *Brown and Burke*, heard by Murphy J, the dispute concerned the wrongful removal of a child, B, born in April 1999, from Australia to The Netherlands. The father and the Central Authority applied for a declaration that the child's removal was wrongful under Australian law, as defined by Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction.

The court was required to determine whether the father and the Central Authority had standing to make the application for a declaration of wrongful removal, and whether the removal of the child from Australia to The Netherlands was indeed wrongful within the meaning of Article 3 of the Convention. The court also considered the effect of such a declaration on proceedings in The Netherlands.

Murphy J found that both the father and the Central Authority had standing to make the application, relying on Regulation 6(1) of the Family Law (Child Abduction Convention) Regulations. The court noted that Regulation 17(1) permits a court to declare the removal of a child from Australia to a convention country as wrongful. Article 3 of the Convention defines wrongful removal as a breach of custody rights that were actually exercised or would have been exercised but for the removal. The court acknowledged that a declaration made under Regulation 17 is summary in nature and does not bind foreign courts.

The court declared that the removal of B from Australia to The Netherlands on or about 12 April 2007 was wrongful under Australian law within the meaning of Article 3 of the Hague Convention. The court also directed that any application for costs be heard and determined by written submissions in chambers, and that such applications be filed within 21 days after the determination of the father's appeal in The Netherlands.