Family Law (Superannuation) Amendment Regulations 2007 (No. 1)

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Family Law (Superannuation) Amendment Regulations 2007 (No. 1)1
Select Legislative Instrument 2007 No. 151
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 21 June 2007
P. M. JEFFERY
Governor‑General
By His Excellency’s Command
PHILIP RUDDOCK
Attorney‑General
1              Name of Regulations
                These Regulations are the Family Law (Superannuation) Amendment Regulations 2007 (No. 1).
2              Commencement
                These Regulations commence on 1 July 2007.
3              Amendment of Family Law (Superannuation) Regulations 2001
                Schedule 1 amends the Family Law (Superannuation) Regulations 2001.
Schedule 1        Amendments
(regulation 3)
  
[1]           Regulation 3, definition of constitutionally protected fund
substitute
constitutionally protected fund has the meaning given by subsection 995‑1 (1) of the Income Tax Assessment Act 1997.
[2]           Regulation 3, after definition of superannuation agreement
insert
superannuation annuity has the meaning given by subsection 995‑1 (1) of the Income Tax Assessment Act 1997.
[3]           Subregulation 10 (5A)
omit
an eligible annuity to that person is identified as the trustee of that eligible annuity.
insert
a superannuation annuity to that person is identified as the trustee of that superannuation annuity.
[4]           After subregulation 10 (5A)
insert
      (5B)   The Defence Force Retirement and Death Benefits Authority, established by section 8 of the Defence Force Retirement and Death Benefits Act 1973, is identified as the trustee of the scheme constituted by the Defence Force (Superannuation) (Productivity Benefit) Determination, made under subsection 52 (1) of the Defence Act 1903.
[5]           Subregulation 11 (1)
substitute
         (1)   Subject to subregulation (2), for the definition of unsplittable interest in section 90MD of the Act, a superannuation interest of a member spouse described in subregulation (1A) or (1B) is prescribed.
      (1A)   For subregulation (1), the superannuation interest of the member spouse must be:
                (a)    an interest other than 1 in respect of which the whole or remaining part of the benefits are being paid to the member spouse as:
                          (i)    a lifetime pension or fixed‑term pension that the member is no longer entitled to commute; or
                         (ii)    a lifetime annuity or fixed‑term annuity; and
               (b)    an interest with a withdrawal benefit in relation to the member spouse of less than $5 000.
      (1B)   For subregulation (1), the superannuation interest of the member spouse must be an interest in respect of which:
                (a)    the whole or remaining part of the benefits are being paid to the member spouse as:
                          (i)    a lifetime pension or fixed‑term pension that the member is no longer entitled to commute; or
                         (ii)    a lifetime annuity or fixed‑term annuity; and
               (b)    the amount of the annual benefit payable to the member is less than $2 000.
[6]           Paragraph 12 (1) (a)
substitute
                (a)    a payment of benefits to the member spouse that is made following a determination, under subregulation 6.19A (1) of the SIS Regulations or subregulation 4.22A (1) of the RSA Regulations, that a condition of release of the benefits on a compassionate ground has been satisfied;
[7]           After paragraph 12 (1) (d)
insert
              (da)    if the superannuation interest is in a superannuation annuity that is a deferred annuity — a payment to the member spouse that is made on compassionate grounds under a term of the annuity;
[8]           Regulation 14Q, heading
substitute
14Q         New annuity established or amount transferred or rolled over or paid by trustee of a superannuation annuity (other than under regulation 14P) in satisfaction of non‑member spouse’s entitlement under agreement or order
[9]           Regulation 19, heading
substitute
19            Entitlement of non‑member spouse — splittable payment payable in respect of superannuation interest (other than an interest in a superannuation annuity)
[10]         Regulation 19A, heading
substitute
19A         Entitlement of non‑member spouse — splittable payment payable in respect of superannuation interest in a superannuation annuity
[11]         Regulation 20, heading
substitute
20            Superannuation interests in excess of low rate cap amount — total withdrawal value (Act s 90MQ)
[12]         Paragraph 22 (2) (c)
substitute
                (c)    an interest in a regulated superannuation fund in relation to which the trustee of the fund has, under section 1017B of the Corporations Act 2001 (as modified, if necessary, as set out in Part 10 of Schedule 10A to the Corporations Regulations 2001), given notice to each member of the fund that the fund is to be reconstructed or terminated.
[13]         Regulation 26, heading
substitute
26            Entitlement of non‑member spouse — splittable payment payable in respect of superannuation interest (other than an interest in a superannuation annuity)
[14]         Regulation 26A, heading
substitute
26A         Entitlement of non‑member spouse — splittable payment payable in respect of superannuation interest in a superannuation annuity
[15]         Subparagraph 63 (3) (e) (ii)
omit
have had.
insert
have had; and
[16]         After paragraph 63 (3) (e)
insert
                (f)    a statement:
                          (i)    indicating whether the Minister has approved, under regulation 43A, a method or factors for determining the gross value of the interest; and
                         (ii)    giving details of any method or factors so approved; and
                (g)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so — the gross value of the interest at the appropriate date, determined in accordance with:
                          (i)    whichever of the methods in regulation 41, 42 or 43 applies to the interest; or
                         (ii)    a method or factors approved by the Minister under regulation 43A.
[17]         Paragraph 63 (4A) (aa), excluding the note
substitute
            (aaa)    a statement:
                          (i)    indicating whether the Minister has approved, under regulation 38, a method or factors for determining the gross value of the interest; and
                         (ii)    giving details of any method or factors so approved; and
              (aa)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so — the gross value of the interest at the appropriate date, determined in accordance with Schedule 3 or in accordance with a method or factors approved by the Minister under regulation 38.
[18]         Subparagraph 63 (6) (d) (iii)
omit
control;
insert
control.
[19]         Paragraph 63 (6) (e)
omit
[20]         After regulation 63
insert
63A         Giving valuation information — partially vested accumulation interest (Act s 90MZB)
         (1)   If an application for information under section 90MZB of the Act specifically requested the trustee to provide the information mentioned in paragraph 63 (4A) (aa) and the trustee, in response to that application:
                (a)    provided the gross value of the partially vested accumulation interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38; but
               (b)    has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors;
the applicant may make an application for information that will enable the applicant do so.
Note   This subregulation applies on or after 1 July 2007 to an interest if a determination has not been made under subregulation 63 (6A) requiring the trustee to give information, not otherwise required under subregulation 63 (4A), which would enable the applicant to check if the gross value of the interest was correctly determined.
         (2)   The trustee must, within a reasonable time after receiving the later application, provide the information requested by the applicant in a document that is addressed to the applicant.
         (3)   Subregulation 68B (2) applies to information that is provided by the trustee to the applicant under this regulation.
[21]         Subparagraph 64 (3) (e) (ii)
omit
have had.
insert
have had; and
[22]         After paragraph 64 (3) (e)
insert
                (f)    a statement:
                          (i)    indicating whether the Minister has approved, under regulation 43A, a method or factors for determining the gross value of the interest; and
                         (ii)    giving details of any method or factors so approved; and
                (g)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so — the gross value of the interest at the appropriate date, determined in accordance with:
                          (i)    whichever of the methods in regulation 41, 42 or 43 applies to the interest; or
                         (ii)    a method or factors approved by the Minister under regulation 43A.
[23]         Paragraph 64 (4) (p), including the note
substitute
               (p)    if the application for information specifically requests the trustee to provide it and the trustee chooses to do so — the gross value of the interest at the appropriate date, determined in accordance with Schedule 2 or in accordance with a method or factors approved by the Minister under regulation 38.
Note   The trustee is not required to provide the information mentioned in paragraph (b), (c) or (j) to the applicant in certain circumstances — see paragraph (6) (d).
[24]         Paragraph 64 (4A) (e), note
substitute
Note   The trustee is not required to provide the information mentioned in paragraph (4) (j) to the applicant in certain circumstances — see paragraph (6) (d).
[25]         Paragraph 64 (6) (c)
omit
[26]         Paragraph 64 (6) (d)
omit
or control;
insert
or control.
[27]         Paragraph 64 (6) (e)
omit
[28]         Subregulations 64 (6A) and (6B)
omit
[29]         After regulation 64
insert
64A         Giving underlying valuation information — defined benefit interests
         (1)   In this regulation:
underlying valuation information means:
                (a)    in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with Schedule 2, being an interest to which paragraph 64 (2) (e) applies — the information mentioned in paragraph 64 (4) (a), (b), (c), (d), (da), (e), (f), (g), (h) or (i); or
               (b)    in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with Schedule 2, being an interest to which paragraph 64 (2) (eaa) applies — the information mentioned in paragraph 64 (4A) (a), (b) or (c); or
                (c)    in relation to the gross value of a superannuation interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38:
                          (i)    if a determination under subregulation 64 (7), (7A) or (7B) is in effect in relation to the interest — information required to be provided under the determination; or
                         (ii)    in any other case — 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.
         (2)   If, before 1 July 2007, an application for information under section 90MZB of the Act specifically requested the trustee to provide the information mentioned in paragraph 64 (4) (p) and, in response to that application:
                (a)    the trustee provided the gross value of the superannuation interest at the appropriate date, determined in accordance with Schedule 2, but did not provide all of the information mentioned in paragraphs 64 (4) (a) to (i); or
               (b)    the trustee provided 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, but has not provided sufficient information to enable the applicant to check whether that gross value has been correctly determined in accordance with the approved method or factors;
the applicant may make an application for specific underlying valuation information.
         (3)   If, on or after 1 July 2007, an application for information under section 90MZB of the Act specifically requested the trustee to provide the information mentioned in paragraph 64 (3) (g) and the trustee, in response to that application:
                (a)    provided the gross value of the defined benefit interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 43A; but
               (b)    has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors;
the applicant may make an application for specific underlying valuation information.
         (4)   If, on or after 1 July 2007, an application for information under section 90MZB of the Act specifically requested the trustee to provide the information mentioned in paragraph 64 (4) (p) and the trustee, in response to that application:
                (a)    provided the gross value of the defined benefit interest at the appropriate date, determined in accordance with a method or factors approved by the Minister under regulation 38; but
               (b)    has not provided sufficient information to enable the applicant to check whether that gross value of the interest has been correctly determined in accordance with the approved method or factors;
the applicant may make an application for specific underlying valuation information.
         (5)   Subject to subregulation (6), the trustee must, within a reasonable time after receiving the later application, provide the underlying valuation information requested by the applicant in a document that is addressed to the applicant.
         (6)   The trustee is not required to provide to the applicant underlying valuation information of the kind mentioned in paragraph 64 (4) (b) or (c) unless a record of that information is in the trustee’s possession, power or control.
         (7)   Subregulation 68B (2) applies to information that is provided by the trustee to the applicant under this regulation.
[30]         Schedule 1, Form 1
substitute
Form 1        Notice to trustee that non‑member spouse’s entitlement under agreement or order satisfied
(subregulations 14H (2) and (3))
NOTICE TO TRUSTEE THAT NON‑MEMBER SPOUSE’S ENTITLEMENT IS SATISFIED IN RESPECT OF PARTICULAR PAYMENT SPLIT
TO the trustee of [name of eligible superannuation plan]:
IN RELATION TO the payment split, of which you were notified on [date when superannuation agreement, flag lifting agreement or splitting order was served on the trustee], in respect of the superannuation interest of [name of member spouse], date of birth [date of birth of member spouse]
Part A — Superannuation interest in a regulated superannuation fund, exempt public sector superannuation scheme, approved deposit fund, RSA or superannuation annuity
[Complete Part A if the superannuation interest is in a regulated superannuation fund, exempt public sector superannuation scheme, approved deposit fund, RSA or superannuation annuity]
I, [name], the non‑member spouse in relation to the above superannuation interest, of [postal address], born on [date of birth], give notice that:
*1.     I have received from [name of member spouse] the amount of [amount] in satisfaction of my entitlement in respect of the payment split.
          OR
*1.     [Name of member spouse] has paid the amount of [amount] to a regulated superannuation fund or an RSA, to be held for my benefit, in satisfaction of my entitlement in respect of the payment split.
2.       I received independent legal advice from a legal practitioner explaining that the payment to me is in substitution for:
(a)     any entitlement I have to receive an amount of money from a splittable payment that becomes payable in respect of the superannuation interest; or
(b)     any right I have to make a request under the payment split provisions of the Superannuation Industry (Supervision) Regulations 1994 to have a new interest created in the eligible superannuation plan in which the member spouse has the superannuation interest, or to request the trustee of that plan to transfer an amount to another eligible superannuation plan to be held for my benefit.
Part B — Superannuation interest in a superannuation fund other than an interest in a regulated superannuation fund or an exempt public sector superannuation scheme
[Complete Part B if the superannuation interest is in a superannuation fund that is not a regulated superannuation fund or exempt public sector superannuation scheme]
I, [name], the non‑member spouse in relation to the above superannuation interest, of [postal address], born on [date of birth], give notice that:
1.       I have received from [name of member spouse] the amount of [amount] in satisfaction of my entitlement in respect of the payment split.
2.       I received independent legal advice from a legal practitioner explaining that the payment to me is in substitution for any entitlement I have to receive an amount of money from a splittable payment that becomes payable in respect of the superannuation interest.
DATED:
[signature of non‑member spouse]
*   Omit if not applicable
[31]         Further amendments
 
Provision
omit
insert

Regulation 3, definition of withdrawal benefit, paragraph (a)
superannuation fund
superannuation fund, an exempt public sector superannuation scheme

Subparagraph 14A (a) (i)
superannuation fund
superannuation fund or an exempt public sector superannuation scheme

Paragraphs 14G (5) (a) and (5A) (a)
superannuation fund
superannuation fund, an exempt public sector superannuation scheme

Paragraph 14G (6) (a)
regulated superannuation fund;
regulated superannuation fund or an exempt public sector superannuation scheme;

Paragraph 14H (2) (a)
superannuation fund,
superannuation fund, an exempt public sector superannuation scheme,

Subparagraph 14H (2) (b) (ii)
superannuation fund or an RSA,
superannuation fund, exempt public sector superannuation scheme or an RSA,

Paragraph 14H (3) (a)
regulated superannuation fund;
regulated superannuation fund or an exempt public sector superannuation scheme;

Paragraphs 14N (4) (a) and (4A) (a)
superannuation fund
superannuation fund, an exempt public sector superannuation scheme

Paragraph 14N (5) (a)
regulated superannuation fund;
regulated superannuation fund or an exempt public sector superannuation scheme;

Paragraph 63 (2) (b)
eligible service period, within the meaning of subsection 27A (1) of the Income Tax Assessment Act 1936;
service period, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997;

Paragraph 63 (3) (e)
an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936
a superannuation lump sum, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997

Subparagraph 63 (3) (e) (ii)
the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act
the superannuation lump sum would have had under Subdivision 307‑C of that Act

Paragraph 63 (4) (f)
the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act
the superannuation lump sum would have had under Subdivision 307‑C of that Act

Subparagraph 63 (4) (f) (i)
an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936
a superannuation lump sum, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997

Paragraph 63 (4A) (l)
the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act
the superannuation lump sum would have had under Subdivision 307‑C of that Act

Subparagraph 63 (4A) (l) (i)
an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936
a superannuation lump sum, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997

Paragraph 64 (2) (b)
eligible service period, within the meaning of subsection 27A (1) of the Income Tax Assessment Act 1936;
service period, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997;

Paragraph 64 (3) (e)
an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936
a superannuation lump sum, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997

Subparagraph 64 (3) (e) (ii)
the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act
the superannuation lump sum would have had under Subdivision 307‑C of that Act

Paragraph 64 (4) (m)
the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act
the superannuation lump sum would have had under Subdivision 307‑C of that Act

Subparagraph 64 (4) (m) (i)
an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936
a superannuation lump sum, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997

Paragraph 66 (2) (b)
eligible service period, within the meaning of subsection 27A (1) of the Income Tax Assessment Act 1936;
service period, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997;

Paragraph 66 (4) (e)
the payment mentioned in paragraphs 27AA (1) (a), (aa), (b), (c), (cb), (d) and (e) of that Act
the superannuation lump sum would have had under Subdivision 307‑C of that Act

Subparagraph 66 (4) (e) (i)
an eligible termination payment under Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act 1936
a superannuation lump sum, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997

Paragraph 67 (2) (b)
eligible service period, within the meaning of subsection 27A (1) of the Income Tax Assessment Act 1936;
service period, within the meaning of subsection 995‑1 (1) of the Income Tax Assessment Act 1997;

[32]         Further amendments — eligible annuity
 
Provision
omit
insert

Paragraphs 7 (1) (a) and 9A (1) (f), subparagraph 14A (a) (iv), paragraph 14H (2) (a), and subregulation 14P (1)
an eligible annuity
a superannuation annuity

Paragraphs 14P (3) (b), (4) (a), (5) (a), (6) (a), (7) (a) and (8) (a), and subregulation 14P (9)
the eligible annuity
the superannuation annuity

Subregulations 14P (10) and 14Q (1)
an eligible annuity
a superannuation annuity

Paragraphs 14Q (3) (a), (4) (a), (5) (a) and (6) (a)
the eligible annuity
the superannuation annuity

Paragraphs 14Q (7) (a), (b), (c) and (d), subregulation 14Q (8), regulations 19, 19A, 26 and 26A, paragraphs 66 (2) (da), (3A) (a) and (b)
an eligible annuity
a superannuation annuity

Subparagraphs 66 (3A) (c) (ii), (iii) and (iv)
the eligible annuity
the superannuation annuity

Subparagraph 66 (5) (d) (iii)
an eligible annuity
a superannuation annuity

Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.
 

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