ANTHONY PAUL GOONAN and CHILD SUPPORT AGENCY
[2010] AATA 352
•12 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 352
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5538
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY PAUL GOONAN Applicant
And
CHILD SUPPORT AGENCY
Respondent
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date12 May 2010
PlaceBrisbane
Decision (1) The Tribunal affirms the decision under review.
(2) The compact disc of evidence provided by the applicant to the Tribunal is to be returned to him.
................[Sgd]..............................
Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – Child Support Agency – Documents sought unable to be located – Should documents sought exist within Child Support Agency – If documents do exist is it protected information – Whether reasonable steps have been taken to determine documents existence – Decision affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Child Support (Assessment) Act 1989 (Cth) s 150
Child Support (Registration and Collection) Act 1988 (Cth) ss 16, 16AA, 113A
Corporations Act 1992 (Cth)
Freedom of Information Act 1982 (Cth) ss 3, 11, 24, 38, Sch 3
Privacy Act 2001 (Cth)
Canadian Pacific Tobacco Company Limited and Another v Stapleton (1952) 86 CLR 1
Chu v Telstra Corporation Ltd (2005) FCA 1730
Federal Commissioner of Taxation v Nestle Australia Ltd [1986] ATC 4760
Garnaut v Argall [2004] FCA 360
Langer and Telstra Corporation Ltd (2002) 68 ALD 762
Re Christovao and Secretary, Department of Social Security (1999) 53 ALD 138
Re Confidential and SSAT [2009] AATA 197
REASONS FOR DECISION
12 May 2010 Dr K S Levy, RFD, Senior Member BACKGROUND
1. The applicant Anthony Goonan, sought access to information under the Freedom of Information Act 1982 (Cth) (the Act) from the Child Support Agency (CSA) in August 2009. The information requested was about a Ms Suzanne Helander, former wife of the applicant. Both the applicant and Ms Helander are recorded as relevant parties to matters registered with the Child Support Register which is maintained by the CSA. This application was refused under s 24A of the Act as the documents sought were unable to be located. Mr Goonan made application for Internal Review of that decision. The officer authorised to undertake the Internal Review also rejected the application under s 24A of the FOI Act, on the basis that the documents “could not be found or did not exist”.
ISSUES
2. The applicant now seeks review of these decisions by this Tribunal. Specifically the Tribunal is to determine:
(1)Is there evidence that the documents sought should exist within the CSA?
(2)Is the information, if it does exist, “protected information” and “exempt”?
(3)If the information does not appear to exist within the CSA, have “reasonable steps” been taken to determine the documents cannot be found or do not exist?
EVIDENCE
The Applicant’s Case
3. The applicant was represented at the hearing by his current wife Mrs Jennifer Goonan. She submitted that a compact disc (CD) of a recording of a telephone conversation on 26 March 2007 between herself and an officer of the CSA is evidence that the CSA is aware that Ms Helander does have an Australian Business Number (ABN). The applicant says this evidence is relevant in another context which pertains to the accuracy of the records in the Child Support Register. At the hearing, Mrs Goonan explained that she works for a large insurance company and that she had this conversation at her workplace which records telephone conversations as a matter of course. She noted that it was recorded with consent of the CSA officer concerned. Relevant parts of that telephone conversation are included later under “Consideration” when dealing with the legal issues before the Tribunal.
4. Evidence was given that Mr Anthony Goonan was previously married to Ms Suzanne Helander. They separated in 1999 and divorced in 2000. Mr Goonan has raised the children of that marriage ever since. As a consequence, the CSA manage the amounts which each of those persons are obliged to pay for the care and maintenance of the children. As a result of the amounts recorded, Mr Goonan received family assistance up to 2006 and now has a debt which he owes to the CSA. He argued that he received too little in child support because Ms Helander’s income was understated in the child support system. He claimed that she is receiving income not in her name but as business income. He alleges that Ms Helander has an ABN and is receiving income from that business which is not recorded with the CSA because Ms Helander’s name and the business name relating to the ABN are not the same. Indeed, it was argued that she has registered a “change of name”, then applied for an ABN under her name and earned additional income in the period 2003 to 2007. He also maintains the CSA knew of Ms Helander’s “dual identities”.
5. The applicant also says that a refusal to provide information about Ms Helander’s ABN has blocked his ability to pursue action to seek a change of assessment.
6. Mr Goonan has provided information that Ms Helander does not have a registered company under the Corporations Act 2001 (Cth). Evidence was also provided that she might have had an accounting business.
7. Mr Goonan provided some documentary evidence of his inquiries interstate about whether Ms Helander had changed her name. That evidence was not conclusive. It is apparent also from the evidence provided by the applicant that the Ombudsman has investigated his complaints about undisclosed income from a retail organisation to Ms Helander, but that complaint could not be substantiated. Equally, the Ombudsman was not able to find any evidence of the CSA being made aware of Ms Helander having an ABN (or at least not in that name).
8. He further argues that the rejection of information as being exempt should not apply because of the application of the Information Privacy Principles under the Privacy Act 1992 (Cth).
The Respondent’s Case
9. The respondent states the applicant sought access to all documents held by the CSA relating to a company or business name owned by Ms Helander and which has a contract with her employer, a furniture retailer, for the period 2003 to 2007.
10. The respondent has a database with the acronym CUBA, which records notes made by its officers of conversations with customers as well as actions being taken in individual cases. Other information is automatically downloaded from other government agencies such as the Australian Taxation Office (ATO) and Centrelink. CUBA has unique identifying numbers for each party recorded in the system. Both Mr Goonan and Ms Helander are so recorded. In dealing with the applicant’s FOI application, the FOI officer of that agency searched CUBA and did not locate any company or business names with an ABN related to Ms Helander.
11. On review, the Internal Review Officer sought information from CUBA about Ms Helander and any of her business related information which was relevant to this application. The National FOI Coordinator undertook this search on behalf of the FOI Internal Review Officer. There are two case numbers on record in which Mr Goonan and Ms Helander are recorded. This search was undertaken “on or around 2 November 2009”. The Internal Review Officer decided (and advised Mr Goonan by a letter dated 5 November 2009) that he was satisfied that all reasonable steps were taken to find the documents but that they did not exist.
12. The respondent also provided an affidavit by Michael Vanderhelm, acting National FOI Coordinator of the CSA, dated 4 February 2010 stating that he undertook the search of the records on behalf of the Internal Review Officer “on or around 2 November 2009”. Mr Vanderhelm stated that he located no documents in the course of the search of CUBA “…which suggested that Ms Helander owned or had links to a business or company or any documents that showed that the Agency had provided advice to the applicant regarding the existence of an ABN”. He states also that even if such information had been located, it would be “exempt” information under the Act as it would be “protected information” under s 16 of the Child Support (Registration and Collection) Act 1988 (Cth) and s 150 Child Support (Assessment) Act 1989 (Cth). This means that “it would be information that concerns a person and was disclosed to or obtained by another person in the course of, or because of, the other person’s duties under or in relation to the child support legislation” mentioned above.
13. The affidavit of Mr Vanderhelm, consistently with the advice of the Respondent’s Senior Legal Adviser and the Respondent’s arguments outlined in its Statement of Facts, Issues and Contentions, is that the release of such “protected information”, if it did exist, would be prohibited by law.
CONSIDERATION
14. The sensitivity which is central to this application is concerned with amounts owed by the applicant under the Child Support Register. It is alleged that this has arisen because there has not been a proper assessment against Ms Helander. The applicant says that Ms Helander has gone to some lengths to avoid her legal obligation for payment or has prevented the CSA from being able to assess her obligations.
15. The applicant alleges that the respondent has information which alerts it to the potential that Ms Helander has avoided her obligations. Where there is such information, the Tribunal can, in appropriate cases find the percentage of care attributable to parties. This, however, is not such an application and deals only with documents coming within the bounds of the application under the FOI Act, rather than under the Child Support statutes. The application relates to the peripheral issues of whether documents exist and which might assist an applicant to make a specific application under the Child Support legislation (ReConfidential and SSAT [2009] AATA 197).
16. The applicant, through his advocate wife Mrs Goonan, has claimed that the Information Privacy Principles provide some support for their claim that the documents sought should not be exempt. I have examined the Information Privacy Principles but I cannot agree that there is any specific support given to this application because of those principles.
17. I now turn to the relevant legislation in relation to the issues and give consideration to whether there is evidence which supports the issues raised by the applicant.
THE RELEVANT LEGISLATION
18. The legislation relevant to the application is as follows:
FREEDOM OF INFORMATION ACT 1982 (CTH)
SECTION 24
Requests may be refused in certain cases
(1)The agency or Minister dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the agency or Minister is satisfied that the work involved in processing the request:
(a)in the case of an agency-would substantially and unreasonably divert the resources of the agency from its other operations; …
SECTION 24A
Requests may be refused if documents cannot be found or do not exist
An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency of Minister is satisfied that the document:
(i)is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
SECTION 38
Documents to which secrecy provisions of enactments apply
(1) Subject to subsection (1A), a document is an exempt document if:
(a)disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and
(b)either:
(i)that provision is specified in Schedule 3; or
(ii)this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.
CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988 (CTH)
SECTION 16
Secrecy
(1) In this section:
…
"protected information" means:
(a)information that:
(i)concerns a person; and
(ii)is disclosed to or obtained by another person in the course of, or because of, the other person's duties under or in relation to this Act; or
(b)information to which paragraph (a) applied that is communicated to a person in circumstances authorised by this section.
(2) Subject to this section, a person to whom this section applies must not:
(a)make a record of any protected information; or
(b)whether directly or indirectly, communicate to a person any protected information concerning another person.
Penalty: Imprisonment for 1 year.
(2A)Subsection (2) does not apply if the record is made, or the information is communicated:
(a)under or for the purposes of this Act; or
(b)in the performance of duties, as a person to whom this section applies, under or in relation to this Act; or
(c)for the purpose for which the information was communicated under this section.
(4)Subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:
(a)the information cannot reasonably be obtained from a source other than the Department; and
(b)the person to whom the information will be communicated has sufficient interest, within the meaning of subsection (4A), in the information; and
(c)the Registrar, or a person authorised by the Registrar, is satisfied that the communication is for the purpose of subsection (4B), (4C),
(4B)A communication of protected information is for the purpose of this subsection if:
(a)the communication is necessary to correct a mistake of fact in relation to the administration of this Act; and
(b)the integrity of that administration will be at risk if the mistake of fact is not corrected.
(4A)A person has sufficient interest in protected information if:
(a)the Registrar, or the person authorised by the Registrar, is satisfied that, in relation to the purpose of the communication, the person has a genuine and legitimate interest in the information; or
(b)the person is a relevant Minister.
(4G)Subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:
(a)the person to whom the information will be communicated is a payee of a registered maintenance liability who has notified the Registrar, in accordance with section 113A, of the payee's intention to institute a proceeding in accordance with that section; and
(b) the information is communicated for the purpose of the proceeding.
SECTION 16AA
(2) If:
(a)the relevant information was communicated to a person under subsection 16(4G); and
(b)that person makes a record of, or communicates, the information for the purpose of a proceeding under section 113A;
subsection (1) of this section does not apply to any further recording, communication or use of that information by a person who is not a person to whom this section applies.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
SECTION 113A
Recovery of debts by payees
Payee to notify Registrar of intention to institute a proceeding to recover debt
(1)A payee of a registered maintenance liability may sue for and recover a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt:
(a)at least 14 days before instituting the proceeding; or
(b)in exceptional circumstances--within such shorter period as the court allows.
Note: For provisions relating to proceedings instituted under this section, see sections 111F and 111G.
Payee to notify Registrar of orders made
(2)A payee of a registered maintenance liability who has instituted a proceeding in a court to recover a debt in accordance with subsection (1) must give notice to the Registrar, in the manner specified by the Registrar, of any orders (including orders as to costs) made by the court in relation to the payee and the debt due in relation to the liability, within 14 days of the order being made.
Note: Section 16A provides for the Registrar to specify the manner in which a notice may be given.
(3) A payee commits an offence if:
(a)the court makes an order in relation to the payee and the debt due in relation to the liability; and
(b)the payee fails to notify the Registrar under subsection (2) of the order being made.
Penalty: 10 penalty units.
(4) Subsection (3) is an offence of strict liability.
(5)It is a defence to a prosecution for an offence against subsection (3) if the person charged proves that the person gave the notice to the Registrar as soon as reasonably practicable after becoming aware of the making of the relevant order.
CHILD SUPPORT (ASSESSMENT) ACT 1989 (CTH)
SECTION 150
Secrecy
(1) In this section:
"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
"person to whom this section applies" means a person who is or has been:
(a)the Minister; or
(b)appointed or employed by, or a provider of services for, the Commonwealth; or
(c)a person to whom protected information is communicated under subsection (3), (4) or (4G); or
(d)a person to whom protected information is communicated by:
(i)a person to whom the information was communicated under subsection (3) or (4); or
(ii) a person mentioned in this paragraph; or
(e)a person to whom this section applied immediately before the commencement of Schedule 5 to the Child Support Legislation Amendment Act 2001 .
(3)Subsection (2) does not prevent the Registrar or a person authorised by the Registrar from communicating any protected information:
(a)to the Secretary, or an officer or employee of the Department, for the purpose of the administration of this Act; or
(b)to the Secretary to the Department or the Department of Veterans' Affairs, or an officer or employee of either Department, for the purpose of the administration of any law of the Commonwealth relating to pensions, allowances or benefits; or
(ba)to the CEO or an employee of the Services Delivery Agency for the purpose of the administration of this Act or of any other law of the Commonwealth relating to pensions, allowances or benefits; or
(bb)to the Chief Executive Officer or an employee of Medicare Australia for the purposes of the performance of functions or the exercise of powers under the Medicare Australia Act 1973 ; or
(c)to a person performing, as a person to whom this section applies, duties under or in relation to this Act or the Registration and Collection Act, or under regulations made under either Act, for the purpose of enabling the person to perform the duties; or
(ca)to a person performing, as a person to whom this section applies, duties under or in relation to an Act of which the Commissioner has the general administration, or under regulations made under such an Act, for the purpose of enabling the person to perform those duties; or
(d)to the Secretary to the Attorney‑General's Department, or an officer or employee of that Department, for the purpose of:
(i)the enforcement outside Australia of:
(A) child support liabilities; or
(B)maintenance liabilities that arose under the law of the Commonwealth or of a State or Territory; or
(ii)the enforcement within Australia of maintenance liabilities that arose under the law of an external Territory or a foreign country; or
(e)to any person, if the information concerns a credible threat to the life, health or welfare of a person and either of the following applies:
(i)the Registrar, or the person authorised by the Registrar, believes on reasonable grounds that the communication is necessary to prevent or lessen the threat;
(ii)there is reason to suspect that the threat may afford evidence that an offence may be, or has been, committed against a person and the information is communicated for the purpose of preventing, investigating or prosecuting such an offence; or
(f)to a person who is authorised to obtain the information by the person to whom the information relates.
(4)Subsection (2) does not prevent the Registrar, or a person authorised by the Registrar, from communicating any protected information to a person if:
(a)the information cannot reasonably be obtained from a source other than the Department; and
(b)the person to whom the information will be communicated has sufficient interest, within the meaning of subsection (4A), in the information; and
(4A)A person has sufficient interest in protected information if:
(a)the Registrar, or the person authorised by the Registrar, is satisfied that, in relation to the purpose of the communication, the person has a genuine and legitimate interest in the information; or
(b)the person is a relevant Minister.
19. I now turn to the issues to be determined by the Tribunal.
Issue 1 – Is there evidence that the documents sought should exist within the CSA?
20. This issue relates to whether the CSA has knowledge that Ms Helander was operating a business which does not have the name “Helander” in its title.
21. I have listened to the CD of the recorded conversation between Mrs Goonan and an officer of the CSA. While some of Mrs Goonan’s conversation was impaired by interference or background noise, the CSA officer’s comments were relatively clear.
22. Mrs Goonan’s comments and complaints are apparent. The CSA officer was open and fairly fulsome in his responses to her and confirmed that in relation to the applicant’s complaints, the CSA was “definitely working on it” (at 22.09 minutes). But he also told Mrs Goonan that the “job has to be done right though” (at 22.57 minutes).
23. He also referred to the CSA’s work as it interacts with the ATO. But in response to Mrs Goonan’s enquiries at one point, the CSA officer says of one question or suggestion that it would be “…a fishing expedition and we are not allowed to do that” (at 26.30 minutes). Shortly after, he reiterated this view and says of the CSA work “…we have to be 98.99% sure we have everything right” (at 28.27 minutes). He later responds to Mrs Goonan that “it is a painfully slow process” but that the CSA has “…got to get it right” (at 40.55 minutes).
24. I found the CSA officer frank and helpful to Mrs Goonan and that he confirmed that he was making enquiries in response to the applicant’s complaints. But there was no specific evidence which I detected where the CSA officer said that he had information specific to a business or a business name which was relevant to Ms Helander. Equally, while the CSA was clearly undertaking some enquiries, no reasonable inference can be drawn from that conversation that documents of the type sought under this FOI request exist within the CSA.
25. I therefore find that there is no evidence of the existence of documents claimed.
Issue 2 – Is the information sought, if it does exist, “protected information” and “exempt”?
26. This issue relates to assertions made by the applicant that there is evidence which points to Ms Helander’s avoidance of her obligation under the Child Support legislation and that she acted in a deceitful or fraudulent manner. It is suggested that there is information within the CSA to support that assertion which the department has denied by its refusal of the application under the FOI Act.
27. I have already found that on the basis of the discussions between Mrs Goonan and a CSA officer, there is no evidence of documents relevant to the application. However, on the assumption that documents exist revealing that Ms Helander does have business dealings under a business name (whether in the name of Helander or not), they would need to be non exempt under the Act for Mr Goonan to be able to access such documents.
28. It is the objective of the Act to make government documents available to the public as far as possible and at the lowest reasonable cost, “…limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of which information is collected and held by departments” (s 3 of the Act). This is reinforced by s 11 of the Act which provides that every person has a legally enforceable right to obtain access to documents of an Agency other than an exempt document.
29. Of specific relevance to this case is s 38(1) of the Act which provides a document is an exempt document if it is prohibited by an enactment which is listed in Schedule 3 of the Act. Both the Child Support (Registration and Collection) Act 1988 (Cth) (s 16(2)(b)) and the Child Support (Assessment) Act 1989 (Cth) (s 150(2)(b)) have provisions which are cited in Schedule 3 to the Act.
30. The respondent submits that if the documents were in existence, they would be exempt because of the secrecy provisions of the Child Support legislation referred to in Schedule 3 of the Act. The respondent also says that these provisions oblige officers not to record “protected information”.
31. The respondent acknowledges this provision and stated the requirements apply “except in limited circumstances”. The respondent contends that none of the exceptions apply.
32. If information suggested by the applicant was “protected information” then it is likely that some information of sensitivity which the Registrar may require to make certain decisions about under the Act could not be recorded. The accuracy of the Child Support Register would suffer.
33. Even if such information is collected, there is a prohibition on release of that information. To do so would be an offence and serious penalties would apply. But what are the exceptions?
34. Some of the exceptions which may be relevant to the applicant are where a person has “sufficient interest” (s 16(4)(b)) which means the Registrar must be satisfied that the person “has a genuine and legitimate interest in the information” (s 16(4A)). “Protected information” can also be released to “a payee of a registered maintenance liability who has notified the Registrar in accordance with s 113A of the Child Support (Registration and Collection) Act 1988 (Cth), of the payee’s intention to institute proceedings (see s 16(4G) of the Act). Section 113A of the Child Support (Registration and Collection) Act 1988 (Cth) details the requirements of a payee to notify the Registrar of an intention to institute proceedings to recover a debt and to inform the Registrar of any orders made.
35. It appears from the evidence Mr Goonan is a payee. It also appears that he may wish to pursue some proceedings. He ultimately wishes to have a reassessment of the liability of Ms Helander. There seem to be some exceptions in the legislation which would or could apply to the applicant. But there was no evidence that any protected information “which the CSA may have would be released as s 113A has not been complied with based on the evidence”.
36. In Garnaut v Argall [2004] FCA 360, Spender J considered s 150 of the Child Support (Assessment) Act 1989 (Cth) and referred to the judgment of the Full Court of the Federal Court in Federal Commissioner of Taxation v Nestle Australia Ltd 1986 ATC 4760. There, the Court said that “…the secrecy provisions do not inhibit the proper production of information relevant to, or in relation to, the Assessment Act.” His Honour was referring to the scope of the “duty” of an officer with regard to extending beyond the performance of administrative work of a Government agency. He concluded a “duty” includes work having consequential legal obligations. It was said that “duty” would be better regarded as being “within the ordinary understanding of duty or function” of an officer. The Full Court also alluded to that interpretation as a result of the judgment of Dixon CJ in the High Court decision of Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1. The Chief Justice there said an officer’s “duty” or “function” includes all that is “incidental” to carrying out a duty or function, but acknowledged a duty or function may also involve a legal obligation.
37. While the statutory provisions here might provide potentially, some legal basis for the Registrar to consider providing relevant information to Mr Goonan, the fact remains that no real evidence was provided other than that referred to in the recorded telephone conversation between Mrs Goonan and the CSA officer. Apart from the general assertions made by the applicant, there was no evidence which was provided to the Tribunal which lends support to a conclusion that any exemption in the child support legislation does apply in this case. Therefore, even though I have found there is no evidence of existence of documents sought, I find that even if they did exist, they would be exempt under the Act.
Issue 3 – Have “reasonable steps” been taken to make a determination under s 24A of the Act?
38. “Reasonable steps” are required by s 24A of the Act. “Reasonable” means “endowed with reason; agreeable to reason or sound judgement: a reasonable choice; not exceeding the limit prescribed by reason; not excessive; reasonable terms; moderate…” (Macquarie Dictionary, Fourth edition 2005).
39. Having regard to those definitions, the level of diligence required to demonstrate that the steps taken were “reasonable” means that it must be to a level which is not too low but does not require a standard which is excessive. That is not dissimilar to the requirements of s 24 which shows that an Agency or Department is not required to “substantially and unreasonably divert the resources of the Agency from its other operations…”.
40. This standard was considered in clear terms in Re Christovao and Secretary, Department of Social Security (1999) 53 ALD 138 which has been followed consistently since that time. However, it is a standard which may also require an Agency to deal with systemic shortcomings in its processes. “Section 24A is not meant to be a refuge for the disordered or disorganised” (Chu v Telstra Corporation Ltd (2005) FCA 1730).
41. In Langer and Telstra Corporation Ltd [2002] 68 ALD 762 it was held that the “reasonable steps” require consideration of:
· the subject matter
· file management systems
· any destruction schedules; and
· steps which have already been taken to locate the documents.
42. In this case there is evidence of both the initial decision maker and the Internal Review Officer undertaking a search of the CUBA database. I note that the Internal Review Officer delegated the search of the database to the National FOI Coordinator. That might, prima facie, raise a question of objectivity of delegating some of the task to an officer who appears to be the supervisor of the area which made the original decision, but no evidence was provided that it was anything other than an arms length decision. In any event, there is the evidence of the Ombudsman having investigated the complaint and a senior investigation officer of that independent agency has provided a letter to the applicant that he could not find “any evidence that the CSA had been made aware of the existence of an ABN in Ms Helander’s name nor could I identify the existence of information that Ms Helander was receiving undisclosed income…”. That independent evidence is of considerable weight. It clearly does not corroborate the applicant’s claim.
43. I accept on the balance of probabilities that the CSA took “reasonable steps” in determining that there was no record or information available which came within the bounds of the FOI request by Mr Goonan. In the circumstances I find that the determination made under s 24A of the Act to refuse the request was properly made.
44. Following a telephone directions hearing on 16 April 2010 with the parties to this application, I made a formal direction under s 35(2)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) that the evidence provided by the applicant be prohibited from publication to any person other than an officer of the Child Support Agency and also that the compact disc of that evidence be returned to the applicant given that official enquiries are presently being made and are not finalised.
45. The decision under review is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member
Signed: .....................[Sgd]........................................................
Kate Slack, Research AssociateDate/s of Hearing 12 March 2010
Date of Decision 12 May 2010
The Applicant was assisted by Jenny Goonan
For the Respondent Donna Smith
0
4
0