17Guidelines for asset-test exempt income stream resulting from family law affected income stream

17 Guidelines for asset-test exempt income stream resulting from family law affected income stream

(1) The Commission may determine that a family law affected income stream that does not meet the requirements of subsection 5JA(2) or 5JB(2) of the Act is an asset-test exempt income stream for the purposes of the Act if: (a) either: (i) the income stream meets all the requirements of paragraphs 5JA(2)(a) to (l) or 5JB(2)(a) to (l) of the Act other than those that are not met because of the operation of an order under Part VIIIAA, or a payment split under Part VIIIB or Part VIIIC, of the Family Law Act 1975 relating to the income stream; or (ii) as a result of the operation of 1 or more orders under Part VIIIAA, or 1 or more payment splits under Part VIIIB or Part VIIIC, of the Family Law Act 1975, the income stream is derived from an income stream that was an asset-test exempt income stream to which subsection 5JA(1A) or 5JB(1B) of the Act applied at the time of the order or payment split, or of the last of them; and (b) the original family law affected income stream from which the income stream is derived as a result of the operation of 1 or more orders under Part VIIIAA, or 1 or more payment splits under Part VIIIB or Part VIIIC, of the Family Law Act 1975, was purchased before 20 September 2004; and (c) either: (i) for an income stream that is an immediate annuity under a statutory fund established by a life company, or under a benefit fund — the income stream satisfies standards published by the Australian Prudential Regulation Authority, about minimum surrender values and paid up values, that apply to the annuity; or (ii) in any other case — the income stream meets the requirements of subsection (2); and (d) the Commission is satisfied that any amount of the original family law affected income stream that is rolled over, transferred, commuted or paid as a lump sum is not more than the amount required to satisfy the non‑member partner’s entitlement under an order under Part VIIIAA, or under a payment split under Part VIIIB or Part VIIIC, of the Family Law Act 1975 relating to the original family law affected income stream; and (e) for an income stream to which subparagraph (a)(i) applies — the Commission is satisfied that the income stream has met all the requirements mentioned in that subparagraph from the day the income stream began being paid. (2) An income stream meets the requirements of this subsection if: (a) the Commission is satisfied that there is in force a current actuarial certificate that states that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules under which the income stream is provided; or (b) for a period beginning when an actuarial certificate mentioned in paragraph (a) ceases to be in force and ending not more than 26 weeks later, an actuarial certificate of that kind is not in force. (3) In considering the matter mentioned in paragraph (2)(a), the Commission must have regard to any guidelines determined under subsection 5JA(1B) or 5JB(1D) of the Act that apply to the income stream.