Commonwealth Numbered Regulations

FAMILY LAW (SUPERANNUATION) AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 290 - SCHEDULE 1

(regulation 3)

[1] Regulation 9

substitute

9 Meaning of partially vested accumulation interest

(1)

For these Regulations, an accumulation interest that a member spouse has as a member of an eligible superannuation plan is a partially vested accumulation interest if subregulation (2) or (3) applies in relation to the interest.

(2)

This subregulation applies in relation to the superannuation interest if the withdrawal benefit in relation to the member spouse at a particular date is less than the total amount notionally or actually allocated to the member spouse at that date, except if the withdrawal benefit is less than that notional or actual amount because of any of the following reasons:

(a)

the trustee of the plan has been assessed to be liable to pay superannuation contributions surcharge in respect of the member spouse, and the trustee has not debited the amount notionally or actually allocated to the member spouse in respect of that liability;

(b)

insurance costs have been charged against the member spouse's benefits in the plan;

(c)

any other fees, taxes or charges will be charged against the member spouse's benefits when the member spouse ceases to be a member of the plan.

(3)

This subregulation applies in relation to the superannuation interest if the benefits to which the member spouse is or may be entitled, on voluntarily ceasing to be a member of the eligible superannuation plan, may include an additional benefit that is calculated by reference to the amount that has been credited, under the governing rules of the plan, to the member spouse in respect of contributions that have been made by, or in respect of, the member spouse.

[2] Subregulation 14F (4)

substitute

(4) In this regulation:

"payment split provisions of the RSA Regulations" means the provisions of the RSA Regulations (other than Division 4A.4) dealing with superannuation interests that are subject to a payment split.

"payment split provisions of the SIS Regulations" means the provisions of the SIS Regulations (other than Division 7A.3) dealing with superannuation interests that are subject to a payment split.

[3] Paragraph 14N (6) (b)

omit

member spouse)

insert

member spouse or reversionary beneficiary of the member spouse)

[4] Subregulation 63 (2)

omit

subregulation (6),

insert

subregulations (6), (6A) and (6B),

[5] After paragraph 63 (4A) (a)

insert

(aa)

if, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the interest — the gross value of the interest at the appropriate date determined in accordance with the approved method or factors;

[6] Subparagraph 63 (6) (d) (iii)

omit

control.

insert

control;

[7] After paragraph 63 (6) (d)

insert

(e)

if the application for information specifically requests the trustee to provide the information mentioned in paragraph (4A) (aa) to the applicant, the trustee is not required to provide this information to the applicant but may choose to do so.

[8] After subregulation 63 (6)

insert

(6A)

If:

(a)

the superannuation interest, or a component of the superannuation interest, is a partially vested accumulation interest; and

(b) under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest or the component of the interest;
the Minister may, by written determination, provide either or both of the following:

(c)

that the trustee is not required to provide the information about the interest, or the component of the interest, mentioned in one or more paragraphs of subregulation (4A);

(d)

that the trustee must provide other information, as specified in the determination, about the interest or the component of the interest.

(6B)

If, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest, the Minister may, by written determination, provide either or both of the following:

(a)

that the trustee is not required to provide the information about the interest mentioned in one or more paragraphs of subregulations (2) and (3);

(b)

that the trustee must provide other information, as specified in the determination, about the interest.

(6C)

A determination by the Minister under subregulation (6A) or (6B) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

[9] Subregulation 64 (2)

omit

subregulation (6),

insert

subregulations (6), (7), (7A) and (7B),

[10] Paragraph 64 (2) (e)

substitute

(e)

if the interest was in the growth phase at the appropriate date and the interest is held by a member as a result of employment in which the member is or was still engaged at the appropriate date — the growth phase information mentioned in subregulation (4);

(eaa)

if:

(i)

the interest was in the growth phase at the appropriate date; and

(ii)

the interest is held by a member as a result of employment in which the member is or was no longer engaged at the appropriate date; and

(iii)

under the governing rules of the plan, the benefit in respect of the interest is payable after the date when the information is provided —

the growth phase information mentioned in subregulation (4A);

[11] Paragraph 64 (4) (d)

substitute

(d)

if the benefit in respect of the interest is payable as a combination of a lump sum and a pension and the governing rules of the plan restrict the proportion of the pension that may be commuted to a lump sum — the maximum amount of pension that may be commuted to a lump sum, expressed as a percentage of the amount of the pension that would be payable if the whole benefit were to be taken as a pension;

(da)

if the benefit in respect of the interest is payable as a combination of a lump sum and a pension and the governing rules of the plan restrict the proportion of the lump sum that may be converted to a pension — the maximum amount of the lump sum that may be converted to a pension, expressed as a percentage of the amount of the lump sum that would be payable if the whole benefit were to be taken as a lump sum;

[12] After subregulation 64 (4)

insert

(4A)

For paragraph (2) (eaa), the growth phase information in relation to the superannuation interest is as follows:

(a)

if the benefit in respect of the interest is payable only as a lump sum:

(i)

the amount of the lump sum that would be payable at the appropriate date, or, if that amount is calculated by reference to the indexation of 2 or more specified lump sums, the amount of each lump sum at that date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and

(ii)

if the amount of the lump sum is calculated by reference to the indexation of the amount of one or more specified lump sums — the method of indexation in respect of each lump sum; and

(iii)

the earliest date when the benefit may be paid to the member (other than for death or disability);

(b)

if the benefit in respect of the interest is payable only as a pension:

(i)

if the amount of the pension payable is calculated by reference to the conversion of a lump sum amount when the pension begins to be paid:

(A) the amount of the lump sum at the appropriate date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and
(B) if the amount of the lump sum is calculated by reference to the indexation of the lump sum — the method of indexation; and
(C) the factor for converting the lump sum to a pension that will apply at the earliest date when the benefit may be paid to the member (other than for death or disability); and

(ii)

in any other case:

(A) the amount of the pension at the appropriate date (excluding any superannuation contributions surcharge payable in respect of the interest), if the member were able to take, and did take, the benefit in respect of the interest at that date; and
(B) if the amount of the pension is determined by increasing a fixed amount in accordance with an index until the earliest date when the benefit may be paid to the member (other than for death or disability) — details about the method used to increase the amount of the pension; and

(iii)

if the pension is indexed when it begins to be paid — the method of indexation; and

(iv)

a statement about whether there is any reversionary beneficiary who is a non-member spouse in relation to the pension benefit and, if so, the proportion of the ongoing pension payments that would be payable to the reversionary beneficiary on the death of the member; and

(v)

the earliest date when the benefit may be paid to the member (other than for death or disability);

(c)

if the benefit is payable as a lump sum, a pension, or a combination of a lump sum and a pension — the information mentioned in paragraphs (4) (d) and (da) and paragraphs (a) and (b) of this subregulation.

[13] Subregulations 64 (6A) to (6D)

substitute

(6A) Subregulation (6B) applies if:

(a)

an application for information specifically requests the trustee to provide the information mentioned in paragraph (4) (p) to the applicant; and

(b)

in response to that application:

(i)

the trustee provides the gross value of the superannuation interest at the appropriate date, determined in accordance with Schedule 2 of these Regulations, and no other information; or

(ii)

the trustee provides the gross value of the superannuation interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38 of these Regulations, and does not provide all the information needed to enable the applicant to check whether that gross value has been correctly determined in accordance with the approved method or factors; and

(c) the applicant makes a later application for:

(i)

if subparagraph (b) (i) applies — information mentioned in one or more of paragraphs (4) (a) to (i); or

(ii)

if subparagraph (b) (ii) applies — specific information that will enable the applicant to check whether the gross value of the interest has been correctly determined in accordance with the approved method or factors.

(6B)

The trustee must, within a reasonable time after receiving the later application, provide to the applicant:

(a)

if subparagraph (6A) (c) (i) applies — the information mentioned in paragraph (4) (a), (b), (c), (d), (e), (f), (g), (h) or (i) that has been specifically requested in the later application; or

(b)

if subparagraph (6A) (c) (ii) applies — the information specifically requested in the later application that will enable the applicant to check whether the gross value of the interest has been correctly determined in accordance with the approved method or factors.

[14] Subregulation 64 (7)

omit

provide:

insert

provide either or both of the following:

[15] Paragraph 64 (7) (a)

omit

and

[16] After subregulation 64 (7)

insert

(7A)

If, under regulation 38, the Minister has approved a method or factors to be used to determine the gross value of a superannuation interest that is made up of a component that is a defined benefit interest and a component that is a partially vested accumulation interest, the Minister may, by written determination, provide any or all of the following:

(a)

that the trustee is not required to provide the information about the component that is a defined benefit interest mentioned in one or more paragraphs of subregulation 64 (4);

(b)

that the trustee is not required to provide the information about the component that is a partially vested accumulation interest mentioned in one or more paragraphs of subregulation 63 (4A);

(c)

that the trustee must provide other information, as specified in the determination, about the interest or a component of the interest.

(7B)

If, under regulation 43A, the Minister has approved a method or factors to be used to determine the gross value of the superannuation interest, the Minister may, by written determination, provide either or both of the following:

(a)

that the trustee is not required to provide the information about the interest mentioned in one or more paragraphs of subregulations (2) and (3);

(b)

that the trustee must provide other information, as specified in the determination, about the interest.

[17] Subregulation 64 (8)

omit

subregulation (7)

insert

subregulation (7), (7A) or (7B)

[18] Paragraph 71 (2) (c)

omit

regulation 48,

insert

Division 6.1A,

[19] Schedule 2, clause 2

substitute

2 Method
(1) If the superannuation interest is held as a result of employment in which the member spouse is still engaged at the relevant date, the method is:

(a)

if the benefit in respect of the interest is payable only as a lump sum — the method set out in Part 2 of this Schedule; and

(b)

if the benefit in respect of the interest is payable only as a pension — the method set out in Part 3 of this Schedule; and

(c)

if the benefit in respect of the interest is payable as a lump sum, a pension, or a combination of a lump sum and a pension — the method set out in Part 4 of this Schedule.

(2)

If the superannuation interest is held as a result of employment in which the member spouse is no longer engaged at the relevant date and, under the governing rules of the plan in which the interest is held, the benefit in respect of the interest is payable on or after the relevant date, the method is:

(a)

if the benefit in respect of the interest is payable only as a lump sum — the method set out in Part 5 of this Schedule; and

(b)

if the benefit in respect of the interest is payable only as a pension — the method set out in Part 6 of this Schedule; and

(c)

if the benefit in respect of the interest is payable as a lump sum, a pension, or a combination of a lump sum and a pension — the method set out in Part 7 of this Schedule.

(3)

For the purposes of subclause (1) and (2), a member spouse is taken to be engaged in employment at the relevant date if, at that date, the member spouse is on paid or unpaid leave from, or for any reason suspended in relation to, that employment.

[20] Schedule 2, Part 2, heading

substitute

Part 2 Interest relating to current employment — benefit payable only as lump sum

[21] Schedule 2, subclause 3 (1)

omit everything before the formula, insert

(1)

The method is:

[22] Schedule 2, Part 3, heading

substitute

Part 3 Interest relating to current employment — benefit payable only as pension

[23] Schedule 2, subclause 5 (1)

omit everything before the formula, insert

(1)

The method is:

[24] Schedule 2, Part 4, heading

substitute

Part 4 Interest relating to current employment — benefit payable as combination of lump sum and pension

[25] Schedule 2, clause 27

omit

[26] Schedule 2, after Part 4

insert

Part 5 Interest relating to former employment — benefit payable only as lump sum

31 Method — lump sum comprising different components

(1)

This clause applies if the lump sum payable in respect of the interest comprises a number of components, the value of which will increase by different rates over the minimum deferral period.

(2)

The gross value of the interest is the sum of the gross value of each component comprising the lump sum, calculated as follows:

DB is the nominal value of the component of the lump sum at the relevant date.

D _y+m is the discount valuation factor calculated in accordance with subclause (3).

(3) For subclause (2), D _y+m at the relevant date is:

D _y is the discount valuation factor specified in clause 32 in respect of the lump sum at the relevant date on the basis of the minimum deferral period (in complete years) applying to the lump sum at that date.

m is the number of complete months of the minimum deferral period applicable to the lump sum at the relevant date that are not included in the remaining complete years of that period at that date.

D _y+1 is the discount valuation factor specified in clause 32 in respect of the lump sum at the relevant date on the basis of the minimum deferral period applying to the lump sum at the completion of the next year after the year mentioned in the definition of the factor D _y .

(4) For the purpose of calculating the discount valuation factor under subclause (3):

"minimum deferral period", in relation to the benefit payable to the member spouse in respect of the interest, means the period until the earliest date at which the benefit may be paid (other than for death or disability).

"nominal value", of a component of a lump sum payable in respect of a superannuation interest at a particular date, means the amount of the component payable (excluding any superannuation contributions surcharge payable in respect of the interest) if the member spouse were able to take, and did take, the benefit in respect of the interest at that date.

32 Discount valuation factors

(1)

For subclause 31 (3), this clause sets out the discount valuation factors.

(2)

Column 2 of the following table sets out the applicable factor for the annual amount of a lump sum that, at the relevant date, is not indexed in respect of the minimum deferral period.

(3)

Column 3 of the following table sets out the applicable factor for the annual amount of a lump sum that, at the relevant date, is indexed in respect of the minimum deferral period in accordance with the consumer price index.

(4)

Column 4 of the following table sets out the applicable factor for the annual amount of a lump sum that, at the relevant date, is indexed in respect of the minimum deferral period in accordance with a general wage index (for example, average weekly earnings, or average weekly ordinary time earnings, published by the Australian Bureau of Statistics) or in accordance with any change in the salary payable for the employment in which the member was engaged immediately before he or she ceased employment.

(5)

If the annual amount of the lump sum at the relevant date is indexed in respect of the minimum deferral period in accordance with a fund crediting rate, the factor is 1.

33 Method — lump sum (other than lump sum comprising different components)

(1)

This clause applies if clause 31 of this Schedule does not apply.

(2) The method is:

DB is the nominal value of the lump sum at the relevant date.

D _y+m is the discount valuation factor calculated in accordance with subclauses 31 (2), (3) and (4) of this Part.

Part 6 Interest relating to former employment — benefit payable only as pension

34 Method — pension payable periodically

(1)

This clause applies if the amount of the pension that would be payable in respect of the interest is, at the time when payment of the pension commences, a fixed amount or an amount determined by increasing a fixed amount in accordance with an index over the minimum deferral period.

(2) The method is:

DBP is the annual amount of pension at the relevant date if the pension were to commence on completion of the minimum deferral period.

P _da is the pension valuation factor mentioned in the clause of Part 3 of this Schedule that applies to the pension, its indexation rate (if any), guarantee period (if any) and the member spouse's age at the end of the minimum deferral period.

R _sa is the reversion valuation factor mentioned in the clause of Part 3 of this Schedule that applies to the pension and the member spouse's age in completed years at the relevant date.

r is the proportion of pension that a non-member spouse would receive, as the reversionary beneficiary of the member spouse, on the death of the member spouse, as provided by the trustee under section 90MZB of the Act.

D _y+m is the discount valuation factor calculated in accordance with subclause (3).

(3) For subclause (2), the discount valuation factor ( D _y+m ) at the relevant date is:

D _y is the discount valuation factor mentioned in clause 35 that applies to the pension at the relevant date and the minimum deferral period in complete years at that date.

m is the number of complete months of the minimum deferral period applicable to the pension at the relevant date that are not included in the remaining complete years of that period at that date.

D _y+1 is the discount valuation factor mentioned in clause 35 that applies to the pension at the relevant date and the minimum deferral period applicable to the pension at the completion of the next year after the year mentioned in the definition of the factor D _y .

(4) In this clause and clause 35:

"minimum deferral period" in relation to the benefit payable to the member spouse in respect of the interest, means the period until the earliest date at which the benefit may be paid (other than for death or disability).

35 Discount valuation factors

(1)

For subclause 34 (3), this clause sets out the discount valuation factors.

(2)

Column 2 of the following table sets out the applicable factor for the annual amount of a pension that, at the relevant date, is not indexed in respect of the minimum deferral period.

(3)

Column 3 of the following table sets out the applicable factor for the annual amount of a pension that, at the relevant date, is indexed in respect of the minimum deferral period in accordance with the consumer price index.

(4)

Column 4 of the following table sets out the applicable factor for the annual amount of a pension that, at the relevant date, is indexed in respect of the minimum deferral period in accordance with a general wage index (for example, average weekly earnings, or average weekly ordinary time earnings, published by the Australian Bureau of Statistics) or in accordance with any change in the salary payable for the employment in which the member was engaged immediately before he or she ceased employment.

(5)

If the annual amount of the pension at the relevant date is indexed in respect of the minimum deferral period in accordance with a fund crediting rate, the factor is 1.

36 Method — conversion of lump sum to pension

(1)

This clause applies if the amount of the pension payable in respect of the interest is to be determined by reference to the conversion of a lump sum amount when payment of the pension commences.

(2) The method is:

DB is the nominal value of the lump sum at the relevant date.

C _da is the factor that would be used to convert the lump sum to a pension at the end of the minimum deferral period.

P _da is the pension valuation factor mentioned in the clause of Part 3 of this Schedule that applies to the pension, its indexation rate (if any), guarantee period (if any) and the member spouse's age at the end of the minimum deferral period.

R _sa is the reversion valuation factor mentioned in the clause of Part 3 of this Schedule that applies to the pension and the member spouse's age in completed years at the relevant date.

r is the proportion of the pension that a non-member spouse would receive as the reversionary beneficiary of the member spouse on the death of the member spouse, as provided by the trustee under section 90MZB of the Act.

D _y+m is the discount valuation factor calculated in accordance with subclause 31 (3) of this Schedule.

(3) For the purpose of calculating the discount valuation factor under subclause (2):

"minimum deferral period" has the meaning given by subclause 31 (4) of this Schedule.

"nominal value" has the meaning given by subclause 31 (4) of this Schedule.

Part 7 Interest relating to former employment — benefit payable as combination of lump sum and pension

37 Method — no restriction on combination of lump sum and pension that may be taken

(1)

This clause applies if there is no provision in the governing rules of the eligible superannuation plan in which the interest is held restricting the proportion of the interest that may be taken as a lump sum or as a pension.

(2) The method is:

PV _ls is the present value of the lump sum that would apply if the whole benefit were to be taken as a lump sum, calculated using the method set out in Part 5 of this Schedule.

PV _p is the present value of the pension that would apply if the whole benefit were to be taken as a pension, calculated using the method set out in Part 6 of this Schedule.

38 Method — restriction on proportion of pension that may be commuted to lump sum
(1) This clause applies if:

(a)

the benefit in respect of the interest is payable as a pension; and

(b)

the governing rules of the eligible superannuation plan in which the interest is held restrict the proportion of the pension that may be commuted to a lump sum.

(2) The method is:

(a)

the maximum amount of pension that, at the end of the minimum deferral period, may be commuted to a lump sum, expressed as a percentage of the amount of the pension that would be payable if the whole benefit were to be taken as a pension; or

(b)

if the percentage calculated under paragraph (a) is greater than 50% — 50%.

PV _ls is the present value of the lump sum that would apply if the whole benefit were to be taken as a lump sum, calculated using the method set out in Part 5 of this Schedule.

PV _p is the present value of the pension that would apply if the whole benefit were to be taken as a pension, calculated using the method set out in Part 6 of this Schedule.

(3) In this clause:

"minimum deferral period", has the meaning given by subclause 31 (4) of this Schedule.

39 Method — restriction on lump sum amount that may be taken as pension
(1) This clause applies if:

(a)

the benefit in respect of the interest is payable as a lump sum; and

(b)

the governing rules of the eligible superannuation plan in which the interest is held restrict the amount of the lump sum that may taken as a pension.

(2) The method is:

(a)

the maximum possible amount of lump sum that, at the end of the minimum deferral period, may be converted to a pension expressed as a percentage of the lump sum that would be payable if the whole benefit were to be taken as a lump sum; or

(b)

if the percentage calculated under paragraph (a) is greater than 50% — 50%.

PV _ls is the present value of the lump sum that would apply if the whole benefit were to be taken as a lump sum, calculated using the method set out in Part 5 of this Schedule.

PV _p is the present value of the pension that would apply if the whole benefit were to be taken as a pension, calculated using the method set out in Part 6 of this Schedule.

(3) In this clause:

"minimum deferral period" has the meaning given by subclause 31 (4).

[27] Schedule 7, heading

substitute

Schedule 7 Modifications of Division 6.2

(subregulation 46 (2))