Family Law (Superannuation) Amendment Regulations 2003 (No. 2) (Cth)

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Family Law (Superannuation) Amendment Regulations 2003 (No. 2)1

Statutory Rules 2003 No. 2292

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Family Law Act 1975.

Dated 27 August 2003

P. M. JEFFERY

Governor-General

By His Excellency’s Command

DARYL WILLIAMS

Attorney-General

1Name of Regulations

These Regulations are the Family Law (Superannuation) Amendment Regulations 2003 (No. 2).

2Commencement

These Regulations commence on gazettal.

3Amendment of Family Law (Superannuation) Regulations 2001

Schedule 1 amends the Family Law (Superannuation) Regulations 2001.

Schedule 1Amendments

(regulation 3)

  

[1]Subregulation 9A (1)

omit

  1. (1)

    For

insert

  1. (1)

    Subject to subregulation (2), for

[2]After paragraph 9A (1) (c)

insert

  1. (ca)

    a superannuation interest in the scheme constituted by the Judges (Pensions and Long Leave) Act 1957 (Qld);

  2. (cb)

    a superannuation interest in the scheme constituted by the Governors (Salary and Pensions) Act 2003 (Qld);

[3]Subregulation 9A (2)

omit everything before paragraph (a), insert

(2)

A superannuation interest mentioned in paragraph (1) (ca), (d) or (e) is not a percentage-only interest if, immediately before the commencement day of the paragraph in which the interest is mentioned:

[4]After subregulation 9A (3)

insert

  1. (4)

    In subregulation (2):

commencement day, for a paragraph in which a superannuation interest is mentioned, means:

  1. (a)

    for paragraph (1) (ca) — the day on which that paragraph commenced; and

  2. (b)

    for paragraphs (1) (d) and (e) — 2 May 2003.

[5]Paragraph 14G (7) (b)

omit

member spouse)

insert

member spouse or a reversionary beneficiary of the member spouse)

[6]Subregulation 14G (10), definition of V

substitute

V is:

  1. (a)

    for a superannuation interest in a self managed superannuation fund — the value of the interest at the termination time, determined by the method that the court would consider appropriate if it were determining the value of the interest under paragraph 90MT (2) (b) of the Act, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse under regulation 59; and

  2. (b)

    for a superannuation interest other than an interest in a self managed superannuation fund — the value of the superannuation interest, being the amount in relation to the interest at the termination time, determined in accordance with the relevant method set out in Division 5.2, as if references in that Division to ‘the relevant date’ were references to ‘the termination time’.

[7]Paragraph 14G (11) (a)

omit

an interest other than an accumulation interest

insert

an interest that is not an accumulation interest (other than a partially vested accumulation interest)

[8]Paragraph 14G (11) (b)

after

(other than

insert

a partially vested accumulation interest or

[9]Subregulation 30 (1)

omit

Schedule 2,

insert

Schedule 2 or a method approved under regulation 38,

[10]Regulation 33

omit

If the superannuation interest

insert

  1. (1)

    Subject to subregulation (2), if the superannuation interest

[11]Regulation 33

insert

  1. (2)

    This regulation does not apply to a superannuation interest in relation to which a method or factor has been approved in an instrument made under regulation 38 after the commencement of this subregulation.

[12]Regulation 34

omit

If the superannuation interest

insert

  1. (1)

    Subject to subregulation (2), if the superannuation interest

[13]Regulation 34

insert

  1. (2)

    This regulation does not apply to a superannuation interest in relation to which a method or factor has been approved in an instrument made under regulation 38.

[14]Subregulations 45D (3) and (4)

substitute

  1. (3)

    If:

    1. (a)

      the whole, or any component, of the superannuation interest is a defined benefit interest, or the superannuation interest is in a self managed superannuation fund; and

    2. (b)

      the adjustment period is a financial year;

the interest rate for the adjustment period is the rate determined by the Australian Government Actuary, and published in the Gazette, being a rate that is 2.5 percentage points above the percentage change in the original estimate of full-time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics during the year ending with the February quarter immediately before the beginning of the adjustment period.

  1. (4)

    If:

    1. (a)

      the whole, or any component, of the superannuation interest is a defined benefit interest, or the superannuation interest is in a self managed superannuation fund; and

    2. (b)

      the adjustment period is a period of less than 12 months that begins and ends within a financial year;

the interest rate for the adjustment period is the rate calculated in accordance with a method determined by the Australian Government Actuary, and published in the Gazette, being a method that provides for calculation of a rate by reference to a rate that is 2.5 percentage points above the percentage change in the original estimate of full-time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics during the year ending with the February quarter immediately before the beginning of the financial year in which the adjustment period occurs.

  1. (5)

    If:

    1. (a)

      the whole, or any component, of the superannuation interest is a defined benefit interest, or the superannuation interest is in a self managed superannuation fund; and

    2. (b)

      the adjustment period is:

      1. (i)

        a period of exactly 12 months ending on a date other than 30 June in a year; or

      2. (ii)

        a period of less than 12 months; and

    3. (c)

      the adjustment period commences before 30 June in a financial year and ends during the following financial year;

the interest rate for the adjustment period is the rate calculated under subregulation (6).

  1. (6)

    For subregulation (5), the rate is calculated in accordance with a method determined by the Australian Government Actuary, and published in the Gazette, being a method that provides for the calculation of a rate by reference to the following rates:

    1. (a)

      a rate that is 2.5 percentage points above the percentage change in the original estimate of full-time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics, during the year ending with the February quarter in the financial year ending immediately before the commencement of the adjustment period;

    2. (b)

      a rate that is 2.5 percentage points above the percentage change in the original estimate of full-time adult ordinary time earnings for all persons in Australia, as published by the Australian Bureau of Statistics, during the year ending with the February quarter in the financial year in which the adjustment period commenced.

[15]Subparagraph 63 (3) (b) (v)

after

any reversionary beneficiary

insert

who is a non-member spouse

[16]Subparagraph 64 (3) (b) (v)

after

any reversionary beneficiary

insert

who is a non-member spouse

[17]Paragraph 64 (4) (i)

substitute

  1. (i)

    if benefits in respect of the interest may be payable to a reversionary beneficiary who is a non-member spouse — the proportion of payment in respect of the interest that the non-member spouse would receive, as a reversionary beneficiary, on the death of the member;

[18]Paragraph 64 (4) (p)

omit

Regulations;

insert

Regulations.

[19]Paragraph 64 (6) (c)

omit

if the application

insert

subject to subregulation (6A), if the application

[20]Paragraph 64 (6) (d)

omit

paragraph (4) (j)

insert

paragraph (4) (b), (c) or (j)

[21]After subregulation 64 (6)

insert

  1. (6A)

    Subregulation (6D) applies if:

    1. (a)

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

    2. (b)

      the trustee provided that information, and did not provide all the information mentioned in paragraphs (4) (a) to (i) and (n), to the applicant; and

    3. (c)

      the applicant makes a later application (the second application) for:

      1. (i)

        if this subparagraph applies — information mentioned in 1 or more of paragraphs (4) (a) to (i); or

      2. (ii)

        if this subparagraph applies — specific information that will enable the applicant to test whether the trustee has correctly calculated the gross value of the interest in accordance with the approved method or factors.

  2. (6B)

    Subparagraph (6A) (c) (i) applies if the information that was provided in response to the first application was the gross value of the superannuation interest determined in accordance with Schedule 2 of these Regulations.

  3. (6C)

    Subparagraph (6A) (c) (ii) applies if the information that was provided in response to the first application was the gross value of the superannuation interest determined in accordance with a method or factors approved by the Minister under regulation 38 of these Regulations.

  4. (6D)

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

    1. (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 second application; or

    2. (b)

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

[22]Subparagraph 66 (3) (b) (v)

after

any reversionary beneficiary

insert

who is a non-member spouse

[23]Schedule 2, subclause 5 (2), definition of B

omit

member spouse’s

insert

member’s

[24]Schedule 2, subclause 5 (2), definition of B

omit

member spouse

insert

member

[25]Schedule 2, subclause 5 (2), definition of Rsa

omit

member spouse’s

insert

member’s

[26]Schedule 2, subclause 5 (2), definition of r

substitute

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

[27]Schedule 2, clause 28, definitions of PVls and PVp

omit

could, and were to, be taken

insert

were to be taken

[28]Schedule 2, clause 29

substitute

29Method — restriction on proportion of pension that may be commuted to lump sum

  1. (1)

    This clause applies if:

    1. (a)

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

    2. (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. (2)

    The method is:

where:

Maxls% is:

  1. (a)

    the maximum possible 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; or

  2. (b)

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

PVls is the present value of the lump sum that would apply if the whole benefit could, and were to, be taken as a lump sum, calculated using the method set out in Part 2 of this Schedule.

PVp 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 3 of this Schedule.

29AMethod — restriction on lump sum amount that may be converted to pension

  1. (1)

    This clause applies if:

    1. (a)

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

    2. (b)

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

  2. (2)

    The method is:

where:

Maxp% is:

  1. (a)

    the maximum possible amount of 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; or

  2. (b)

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

PVls 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 2 of this Schedule.

PVp is the present value of the pension that would apply if the whole benefit could, and were to, be taken as a pension, calculated using the method set out in Part 3 of this Schedule.

[29]Schedule 2, subclauses 30 (1) and (2)

omit

28 (2) or 29 (3)

insert

28 (2), 29 (2) or 29A (2)

[30]Schedule 5, clause 3, including the table

substitute

3Pension valuation factors

  1. (1)

    The table in this clause sets out the pension valuation factors.

  2. (2)

    The factors in column 2 apply if the pension is not indexed.

  3. (3)

    The factors in column 3 apply if the pension is indexed in accordance with the consumer price index.

  4. (4)

    The factors in column 4 apply if the pension is indexed in accordance with the consumer price index with a cap of 5%.

  5. (5)

    The factors in column 5 apply if the pension is indexed in accordance with the consumer price index plus 1%.

  6. (6)

    The factors in column 6 apply if the pension is indexed in accordance with the consumer price index plus 1% with a cap of 5%.

  7. (7)

    The factors in column 7 apply if the pension is indexed 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).

  8. (8)

    The factors in column 8 apply if the pension is indexed at 3%.

  9. (9)

    The factors in column 9 apply if the pension is indexed at 5%.

Remaining term of pension (in complete years)

Pension valuation factors

Pension not indexed

CPI indexed pension

CPI indexed pension with 5% cap

CPI indexed pension plus 1%

CPI indexed pension plus 1% with 5% cap

Wage indexed pension

Pension indexed at 3%

Pension indexed at 5%

0

0.000

0.000

0.000

0.000

0.000

0.000

0.000

0.000

1

0.969

0.981

0.981

0.986

0.985

0.988

0.983

0.993

2

1.879

1.925

1.923

1.944

1.940

1.953

1.935

1.972

3

2.734

2.834

2.830

2.875

2.867

2.896

2.854

2.937

4

3.536

3.709

3.702

3.780

3.765

3.816

3.744

3.889

5

4.289

4.550

4.540

4.659

4.637

4.714

4.604

4.827

6

4.996

5.360

5.345

5.514

5.483

5.592

5.437

5.752

7

5.661

6.140

6.120

6.344

6.303

6.449

6.241

6.664

8

6.284

6.891

6.865

7.151

7.098

7.286

7.020

7.563

9

6.870

7.613

7.581

7.936

7.870

8.103

7.772

8.449

10

7.420

8.308

8.270

8.698

8.618

8.901

8.500

9.323

11

7.936

8.977

8.932

9.439

9.344

9.680

9.204

10.185

12

8.421

9.621

9.569

10.159

10.048

10.441

9.885

11.035

13

8.876

10.241

10.181

10.858

10.731

11.184

10.544

11.872

14

9.303

10.837

10.770

11.538

11.394

11.910

11.181

12.698

15

9.705

11.411

11.336

12.199

12.036

12.618

11.797

13.512

16

10.081

11.963

11.880

12.841

12.659

13.310

12.393

14.315

17

10.435

12.495

12.403

13.465

13.264

13.986

12.969

15.106

18

10.768

13.007

12.906

14.072

13.850

14.646

13.526

15.886

19

11.079

13.499

13.390

14.661

14.419

15.291

14.065

16.655

20

11.372

13.973

13.855

15.234

14.970

15.920

14.586

17.414

21

11.647

14.430

14.302

15.791

15.506

16.534

15.090

18.162

22

11.906

14.869

14.732

16.332

16.025

17.134

15.578

18.899

23

12.148

15.291

15.146

16.858

16.528

17.720

16.049

19.626

24

12.376

15.698

15.543

17.369

17.016

18.293

16.505

20.342

25

12.590

16.090

15.925

17.865

17.490

18.851

16.946

21.049

26

12.790

16.466

16.293

18.348

17.949

19.397

17.373

21.745

27

12.979

16.829

16.646

18.817

18.395

19.930

17.785

22.432

28

13.156

17.178

16.986

19.272

18.827

20.450

18.184

23.109

29

13.322

17.514

17.313

19.715

19.246

20.958

18.570

23.776

30

13.478

17.837

17.627

20.146

19.653

21.455

18.943

24.434

Notes

1. These Regulations amend Statutory Rules 2001 No. 303, as amended by 2002 Nos. 176 and 333; 2003 No. 77.

2. Notified in the Commonwealth of Australia Gazette

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