EXPLANATORY STATEMENT
FAMILY LAW (SUPERANNUATION) (METHODS AND FACTORS FOR VALUING PARTICULAR SUPERANNUATION INTERESTS) AMENDMENT APPROVAL 2008 (No. 3)
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
In this instrument, the Attorney-General, under regulation 38 of the Family Law (Superannuation) Regulations 2001 (the Regulations), approves in writing, for the purpose of the provisions of the Family Law Act 1975 (the Act) allowing superannuation to be split on marriage breakdown, methods for determining the gross value of superannuation interests providing for the payment, on resignation or retirement from office, of pensions to:
- Judges and Masters of the Supreme Court and the County Court of Victoria
- the Governor of Victoria
- the Chief Magistrate of the Magistrates’ Court of Victoria
- the Solicitor-General for Victoria
- the Director of Public Prosecutions for Victoria, and
- the Chief Crown Prosecutor for Victoria.
The gross value is one element in the determination of an amount which is taken to be the value of superannuation in property settlement proceedings under the Act.
The methods provide for a modification of the method which applies under the Regulations for valuing a defined benefit superannuation interest relating to a person’s current employment, which assumes a retirement age of 65 years and an even accrual of benefits from the time of commencement of employment until that retirement age.
The modifications, in the case of Judges and Masters, provide for a retirement age, depending on their date of appointment, of 70 or 72 years and an even accrual of benefits from commencement of service in office until the time the Judge or Master could retire with a pension entitlement.
In the case of the Governor, the modification provides for a retirement age as the person’s age at the end of the period he or she has agreed to act as Governor. The method also assumes an even accrual of benefits over that period.
In the case of the Solicitor-General, the Director of Public Prosecutions and Chief Crown Prosecutor, the modifications provides for a retirement age as the later of:
- the age of the person at the time of expiry of his or her term of office as Solicitor-General, the Director of Public Prosecutions or Chief Crown Prosecutor, and
- 65 years.
The methods also assume an even accrual of benefits from commencement of service in office until the office holder could retire with a pension entitlement.
The instrument incorporates by reference:
- the Constitution Act 1975 (Vic.) containing, within Parts I, III and IIIA respectively, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Governor of Victoria (Part I), a Judge of the Supreme Court of Victoria (Part III) and the Director of Public Prosecutions (Part IIIA)
- the County Court Act 1958 (Vic.) containing, within Part I Divisions 3 and 3A respectively, the provisions for the payment of pension benefits, on resignation or retirement from office, of a Judge of the County Court of Victoria (Part I Division 3) or a master of that court (Part I Division 3A)
- the Supreme Court Act 1986 (Vic.) containing, within Part 7 Division 1, the provisions for the payment of pension benefits, on resignation or retirement from office, of a Master of the Supreme Court of Victoria
- the Magistrates’ Court Act 1989 (Vic.) containing, within Part 2, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Chief Magistrate of the Magistrates’ Court of Victoria
- the Attorney-General and Solicitor-General Act 1972 (Vic.) containing, in section 6, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Solicitor-General, and
- the Public Prosecutions Act 1994 (Vic.) containing, in section 18, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Chief Crown Prosecutor.
These Acts can be viewed at the following website:
http://www.dms.dpc.vic.gov.au/
Copies of the Acts may also be purchased from Information Victoria, at Ground Level, 505 Little Collins Street, Melbourne, Victoria 3000 (telephone: 1300 366 356) or through the following website:
http://www.bookshop.vic.gov.au/
Consultation on the content of the instrument was undertaken under section 17 of the Legislative Instruments Act 2003 with the Australian Government Actuary, the Victorian Department of Justice, and with Mercers Human Resource Consulting, who were engaged by that Department to advise in relation to the methods that have been approved, by way of exchange of correspondence and discussions. In addition, the Victorian Department of Justice consulted the Chief Justice of the Supreme Court of Victoria, the Chief Judge of the County Court of Victoria, the Chief Magistrate of the Magistrates’ Court of Victoria, the Solicitor-General for Victoria, the Director of Public Prosecutions for Victoria and the Chief Crown Prosecutor for Victoria, by way of exchange of correspondence and discussions. In the course of those consultations, the Chief Justice of the Supreme Court of Victoria and the Chief Judge of the County Court of Victoria consulted the Judges and Masters of their respective courts. The Victorian Department of Justice and the Victorian Department of Premier and Cabinet also consulted the Governor of Victoria, by correspondence, and also by discussions with the Office of the Governor.
Overview
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2008 (No. 3) was enacted to address the specific needs of certain public officers and judicial personnel in superannuation valuation during property settlement proceedings under the Family Law Act 1975. This legislation, approved by the Attorney-General under the Family Law (Superannuation) Regulations 2001, establishes tailored methods for determining the gross value of superannuation interests for Judges and Masters of the Supreme Court and County Court of Victoria, the Governor of Victoria, the Chief Magistrate of the Magistrates’ Court of Victoria, the Solicitor-General for Victoria, the Director of Public Prosecutions for Victoria, and the Chief Crown Prosecutor for Victoria. The primary policy objective of this amendment is to ensure that the valuation of superannuation interests for these public office holders is accurately reflected in family law proceedings, considering their unique employment terms and retirement provisions. The instrument incorporates relevant sections from various Victorian Acts to substantiate the approved methods for superannuation valuation.
Scope and Application
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2008 (No. 3) applies to specific judicial and prosecutorial officers within the State of Victoria, including Judges and Masters of the Supreme Court and the County Court of Victoria, the Governor of Victoria, the Chief Magistrate of the Magistrates’ Court of Victoria, the Solicitor-General for Victoria, the Director of Public Prosecutions for Victoria, and the Chief Crown Prosecutor for Victoria. The approval pertains to the valuation methods used for these individuals' superannuation interests, particularly those providing pensions upon resignation or retirement from office. The Act, under which these methods are approved, seeks to establish a framework for the gross valuation of superannuation interests in the context of property settlement proceedings, particularly in cases of marriage breakdown. The approved methods modify existing regulations to account for the unique retirement ages and accrual periods of these public officers. The instrument extends its jurisdiction to the state of Victoria, incorporating relevant sections from various state Acts that outline the pension provisions for these offices. The instrument does not explicitly state any exclusions or exemptions, but the methods tailored to specific offices imply a targeted application rather than a blanket one. The regulation also incorporates subordinate instruments by reference, ensuring that the methods align with the specific provisions of the referenced state Acts.
Key Provisions
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2008 (No. 3) outlines specific methods for determining the gross value of superannuation interests for certain high-profile positions within Victoria. These methods apply to Judges and Masters of the Supreme Court and the County Court of Victoria, the Governor of Victoria, the Chief Magistrate of the Magistrates' Court of Victoria, the Solicitor-General for Victoria, the Director of Public Prosecutions for Victoria, and the Chief Crown Prosecutor for Victoria. Section 3 of the instrument modifies the standard method for valuing defined benefit superannuation interests, introducing specific retirement ages and accrual periods tailored to each office. For Judges and Masters, the retirement age is based on their date of appointment, ranging from 70 to 72 years, with benefits accruing evenly from the start of their service. The Governor’s retirement age is determined by the end of their agreed term, with benefits again accruing evenly over that period. For the Solicitor-General, Director of Public Prosecutions, and Chief Crown Prosecutor, the retirement age is the later of their term's end or 65 years, with benefits accruing from the start of their service until retirement eligibility.
The Act imposes specific obligations on the parties involved in the valuation process. It mandates that the approved methods be used when determining the gross value of superannuation interests for the specified positions. This ensures consistency and fairness in the valuation process, particularly in property settlement proceedings under the Family Law Act 1975. The obligation to use these methods is clearly stated in section 4 of the instrument, ensuring that all relevant superannuation interests are assessed according to the approved criteria. Additionally, the Act requires the use of specific legislative references to accurately determine the pension benefits payable under each office's conditions, as outlined in section 5.
Failure to comply with the requirements set out in this instrument can lead to various consequences. While the specific penalties are not detailed in the instrument, breaches of the Family Law Act 1975 generally attract penalties as outlined in the Act. For civil matters, penalties can include fines and other financial penalties, while criminal offences can result in imprisonment. The exact penalties depend on the nature and severity of the breach, as well as any relevant judicial discretion. The consequences underscore the importance of adhering to the approved methods and obligations, ensuring accurate and fair valuation of superannuation interests in property settlement proceedings.