Family Law (Superannuation) (Provision of Information - Commonwealth Superannuation Scheme) Determination 2004

The Family Law (Superannuation) (Provision of Information , Commonwealth Superannuation Scheme) Determination 2004 is a legislative instrument that modifies the standard information disclosure requirements imposed on the trustee of the Commonwealth Superannuation Scheme (CSS). Under the default operation of regulation 64 of the Family Law (Superannuation) Regulations 2001 (the Regulations), trustees are required to provide a standardised set of information to members, non-member spouses, or their legal representatives when a request is made in the context of relationship breakdown and property division. Because the CSS is a highly complex, defined benefit superannuation scheme established under the Superannuation Act 1976 (the Act), the generic reporting templates prescribed by the Regulations do not align with the actuarial data needed to value a member's interest.

To address this structural mismatch, this Determination exercises the power granted to the Minister under subregulations 64(7) and 64(7B) of the Regulations. It legally relieves the CSS trustee (the CSS Board, established under section 27A of the Act) from the obligation to provide certain default pieces of information. In their place, the Determination mandates the provision of specific, CSS-customised actuarial factors and administrative data points. These custom inputs are derived from the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the Methods and Factors Approval).

Mechanically, the Determination bifurcates its operation into two distinct categories:

• Section 5 governs superannuation interests that were in the "growth phase" at the appropriate date. It maps nine distinct types of growth phase interests (referenced to the "CSS table" within the Methods and Factors Approval) and prescribes exactly which default information requirements under regulation 64 are turned off, and which scheme-specific factors and data must be supplied.
• Section 6 governs superannuation interests that were in the "payment phase" at the appropriate date. It covers four specific types of payment phase interests, similarly modifying the standard disclosure requirements of regulation 64 to ensure that the trustee only provides the actuarial factors and pension details necessary to calculate the value of an active pension.

By substituting generalised commercial superannuation disclosure items with targeted defined benefit variables (such as specific accumulated contribution balances, indexation indicators, and historical employment dates), the Determination ensures that separating couples and the courts have the exact mathematical inputs required to execute a formal valuation.

To navigate the Determination, several highly technical statutory and actuarial concepts must be understood.

The Commonwealth Superannuation Scheme (CSS) and the Act

The CSS is a hybrid superannuation scheme (containing both defined benefit and defined contribution components) established by the Superannuation Act 1976. It is characterized by complex pension calculation rules based on a member's salary history, years of contributory service, and elections made upon retirement or exit. Under section 27A of the Act, the CSS Board is established as the trustee responsible for the administration of the fund.

Growth Phase vs. Payment Phase

The Determination distinguishes between interests based on their operational phase:

• Growth Phase (Section 5): This phase applies to members who have not yet commenced receiving a pension from the CSS. Their interests are still accumulating and may consist of member contributions, employer productivity contributions, and an unfunded employer-financed component.
• Payment Phase (Section 6): This phase applies when the member (or an associate) has commenced receiving a pension under the Act. The interest is valued as an income stream, which requires different valuation factors than those used during the growth phase.

The Methods and Factors Approval and the CSS Table

Under Part 1 of Schedule 1 to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, a designated "CSS table" (found in clause 2 of Part 1) sets out the mathematical formulas used to value CSS interests. The Determination adopts these definitions and formulas. Specifically, it references the items in the CSS table to determine which information must be provided for different classes of CSS members.

The "Appropriate Date" and "Relevant Date"

Section 3(3) of the Determination contains an important interpretive rule. Any reference to the "relevant date" in the description of a superannuation interest or in the definition of a factor within the Methods and Factors Approval must be read as a reference to the "appropriate date". The "appropriate date" is the valuation date designated under the family law valuation request, which is typically the date of the separation or the date the valuation is performed.

Actuarial Factors

The columns in sections 5 and 6 reference specific abbreviated factors that must be disclosed by the trustee. These factors include:

The operational impact of this Determination is concentrated on four primary groups within the Australian legal and financial sectors:

The Trustee of the CSS (The CSS Board)

The CSS Board (and the administrative staff of the government superannuation administrator) is the entity directly regulated by this Determination. The instrument fundamentally changes their compliance checklist. When the trustee receives a Form 6 information request under the Family Law Act 1975, they cannot simply generate a standard commercial superannuation statement. They must apply the precise itemisation in section 5 or section 6 to ensure they do not disclose excluded information (which could constitute an administrative or privacy breach) and that they do disclose all mandatory scheme-specific factors.

Separating Spouses and Member Employees

Members of the CSS are typically current or former Commonwealth public servants, statutory office holders, or employees of approved authorities. When a CSS member separates from their spouse, both parties must navigate the division of their matrimonial assets. The Determination affects how these individuals obtain valuation data. Rather than receiving a simple dollar-figure balance, they (and their former spouses) receive a complex list of actuarial variables. This data must then be processed through the formulas in the Methods and Factors Approval 2003 to arrive at a legal valuation for property settlement purposes.

Family Law Practitioners, Actuaries, and Financial Advisors

Legal practitioners and actuarial experts representing parties to a family law dispute involving a CSS interest must understand this Determination to verify the accuracy of the information provided by the trustee. Actuaries rely on the specific factors mandated by column 4 (such as ABC, ASC, and ERDA) to execute independent valuations. Lawyers must ensure that any subpoena, court order, or information request precisely targets the data points that the trustee is legally required to provide under this instrument.

The Family Law Courts

Judges, registrars, and legal officers of the Family Court of Australia and the Federal Circuit Court (and their successor entities) are affected by this instrument. The court relies on valuations calculated using the factors mandated by this Determination to make equitable property split orders under Part VIIIB of the Family Law Act 1975.

The Determination is structured around a strict set of reciprocal modifications to the standard duties of disclosure. It strips away certain generic duties and replaces them with highly specific, scheme-appropriate obligations.

The Duty Not to Provide Default Information (Column 3)

For both growth phase and payment phase interests, the trustee is relieved of its standard obligation to provide various parts of the information listed in regulation 64 of the Regulations.

• Growth Phase: For interests falling under items 1, 2, 4, 8, and 9 of the section 5 table, the trustee is explicitly not required to provide the information mentioned in paragraphs 64(4)(a) to (i) of the Regulations (or paragraphs 64(4)(a), (b) and (d) to (i) for item 1). For items 3, 5, 6, and 7, the trustee is not required to provide the information mentioned in paragraphs 64(4A)(a) to (c) of the Regulations.
• Payment Phase: For interests under items 1 and 4 of the section 6 table, the trustee is relieved of the duty to provide information mentioned in subparagraphs 64(3)(b)(ii), (iii), (iv), and (v) of the Regulations. For items 2 and 3, the broader exclusion in paragraph 64(3)(b) of the Regulations applies.

These exclusions are not merely optional; they represent a statutory boundary on what the trustee is expected to compile, preventing the waste of administrative resources on inapplicable metrics.

The Positive Duty to Provide Customised Scheme Information (Column 4)

In exchange for the relieved duties, the trustee is subject to a strict positive duty to provide the specific factors and administrative details listed in column 4 of the tables. These requirements vary by interest type:

• Actuarial Factors: The trustee must provide the precise value of the factors corresponding to the member's specific CSS table item (e.g., ABC, ASC, PCI, ERDA, etc.) as of the appropriate date.
• Administrative and Demographic Data: For almost all growth and payment phase items, the trustee must disclose:
  • The member's exact date of birth.
  • The date of the last occasion when the person became an "eligible employee" under the Act.
  • Whether any transfer value or payment has been made to the CSS Board under section 110SL or section 130B of the Act.
• Employment and Leave History: For growth phase interests under item 1, the trustee must identify any period where the member was on a leave of absence without pay for longer than 12 weeks, excluding periods defined under subsection 51(2) of the Act. For item 8, the trustee must supply the exact date the member ceased to be an eligible employee.

This Determination does not contain self-contained criminal offenses, civil penalty provisions, or administrative fines. Instead, its enforcement is structurally tied to the broader regulatory and compliance framework of the Family Law Act 1975, the Superannuation Act 1976, and the Family Law (Superannuation) Regulations 2001.

Breach of Statutory Duty under the Regulations

Because this Determination is made under subregulations 64(7) and 64(7B) of the Regulations, a failure by the trustee to comply with the modified disclosure requirements set out in column 4 constitutes a breach of regulation 64 itself. Under the broader Australian superannuation regulatory framework, a trustee's persistent failure to comply with statutory information requests can result in:

• Action by the Australian Prudential Regulation Authority (APRA) or the Australian Securities and Investments Commission (ASIC) for breach of trustee licensing conditions or general standards of conduct.
• Complaints to the Superannuation Complaints Tribunal (historically) or the Australian Financial Complaints Authority (AFCA), which can issue binding determinations ordering the trustee to compile and provide the correct statutory information.

Civil Consequences in Family Law Proceedings

The most immediate and practical enforcement mechanism occurs within the family law litigation itself:

• Adjourned Proceedings and Cost Orders: If the trustee fails to provide the precise actuarial factors (such as ABC or ERDA) required to calculate a valuation, the court cannot proceed to make a final property order. This typically results in the adjournment of proceedings and can lead to cost orders against the party responsible for the delay or, in extreme cases of administrative failure, litigation involving the trustee.
• Setting Aside of Agreements and Orders: If a valuation is calculated based on incorrect or incomplete information supplied by the trustee (for example, if the trustee fails to disclose an election under section 110TBA or misstates a leave period under section 51(2) of the Act), any subsequent superannuation splitting agreement or court order may be vulnerable to being set aside. Under sections 79A or 90K of the Family Law Act 1975, a court may set aside an order or agreement if there has been a miscarriage of justice by reason of fraud, duress, or the giving of false or misleading information.

The Determination sits at the center of a complex web of Commonwealth legislation, acting as a translator between family law valuation concepts and public sector superannuation rules.

       +------------------------------------+
       |       Family Law Act 1975          |
       |  - Part VIIIB (Superannuation Split)|
       +-----------------+------------------+
                         |
                         v
       +-----------------+------------------+
       | Family Law (Superannuation)        |
       | Regulations 2001                   |
       |  - Regulation 64 (Default Rules)   |
       +-----------------+------------------+
                         |
                         | (Modified by)
                         v
+------------------------+--------------------------+
|  This Determination (CSS Provision of Info 2004)  |
+------------------------+--------------------------+
                         |
                         | (Applies factors from)
                         v
+------------------------+--------------------------+
|  Methods and Factors Approval 2003                |
|  - Clause 2, Part 1, Schedule 1 (CSS Table)       |
+------------------------+--------------------------+
                         |
                         | (To value interests in)
                         v
       +-----------------+------------------+
       |      Superannuation Act 1976      |
       |  - Governs the CSS & Trustee duties|
       +------------------------------------+

The Family Law Act 1975 and the Regulations

Part VIIIB of the Family Law Act 1975 introduces the concept of superannuation splitting, treating superannuation as a distinct class of property that can be divided upon divorce or separation. Regulation 64 of the Family Law (Superannuation) Regulations 2001 sets out the default administrative process for requesting and providing the valuation information. This Determination directly alters the operation of regulation 64 by substituting the default lists of information in subregulations 64(3), 64(4), and 64(4A) with the custom tables in sections 5 and 6 of the Determination.

The Superannuation Act 1976

The Determination is deeply intertwined with the principal Act governing the CSS. The columns in sections 5 and 6 require the trustee to verify and disclose actions taken under specific sections of the Superannuation Act 1976:

• Section 27A: Defines the CSS Board, which acts as the trustee bound by these duties.

The Family Law (Superannuation) (Provision of Information , Commonwealth Superannuation Scheme) Determination 2004 has undergone a series of targeted amendments designed to refine the definitions and expand the scope of the disclosure regime.

Original Instrument (2004)

The original Determination was made on 8 March 2004 and notified in the Commonwealth Gazette on the same day (Gazette 2004, No. S68). It commenced immediately upon notification. The initial version focused primarily on growth phase interests, establishing the core framework for modifying regulation 64.

Amendment Determination 2004 (No. 1)

Made shortly after the principal instrument, this amendment was notified in the Gazette on 13 May 2004 (Gazette 2004, No. S150) and commenced on 18 May 2004. It made minor corrections and adjustments to the growth phase provisions in section 5.

Amendment Determination 2005 (No. 1)

This was the most significant structural amendment to the instrument. Registered on the Federal Register of Legislative Instruments on 25 May 2005 (F2005L01179) and commencing on 26 May 2005, it:

• Amended the definition section (section 3) to accommodate new payment phase concepts.
• Repealed and substituted the heading of section 5 to specify "growth phase interests".
• Amended section 5 to update and align the CSS table item references.
• Inserted an entirely new section 6 ("Provision of information by trustee , payment phase interests"), which created a parallel disclosure table for pensions and associate deferred benefits.

Amendment Determination 2008 (No. 1)

Registered on 31 January 2008 (F2008L00133) and commencing on 1 February 2008, this amendment updated section 5 to reflect subsequent adjustments in the CSS valuation formulas and the underlying Methods and Factors Approval. It ensured that the data points requested from the trustee remained perfectly synchronized with evolving actuarial models.

The text of the Family Law (Superannuation) (Provision of Information , Commonwealth Superannuation Scheme) Determination 2004 does not cite or reference any specific judicial decisions or court cases. However, the legal mechanics governed by the Determination represent a common flashpoint for disputes in the Family Law Courts.

Litigation in this space typically does not challenge the validity of the Determination itself, but rather centers on the consequences of administrative errors made by the trustee or parties when applying the mandated factors.

Disputes Over Valuation Inputs

Because the CSS is a defined benefit scheme, minor variations in the input data provided by the trustee can result in vast differences in the calculated capital value of a superannuation interest. For example, if the trustee errs in reporting the exact period of leave of absence without pay under section 51(2) of the Act (which must be disclosed under item 1 of section 5), the actuarial calculation of the "ERDA" factor or the overall accrued service period will be flawed. This leads to litigation where parties contest the valuation of the matrimonial pool, sometimes requiring the court to join the trustee or order independent actuarial assessments to resolve conflicts between the trustee's records and the member's personal employment history.

Setting Aside Splitting Agreements due to Incomplete Disclosure

Under the Family Law Act 1975, parties can enter into private superannuation splitting agreements. For these agreements to be binding, they must be accompanied by a certificate of independent legal advice and be based on accurate financial disclosure. If a party executes an agreement relying on a CSS statement that omitted critical information required under column 4 (such as whether an election was made under section 110TBA), the non-member spouse may later litigate to have the agreement set aside. The court has the power to void agreements where a material omission of a factor specified in this Determination led to an inequitable or legally flawed valuation.

For legal practitioners, actuaries, and compliance officers, this Determination contains several subtle traps that can easily lead to non-compliance, inaccurate valuations, or litigation.

The 12-Week Leave Without Pay Trap

Under section 5, item 1, column 4, the trustee must disclose:

"...any period when the person who has the interest was, while an eligible employee, on a period of leave of absence without pay for a period longer than 12 weeks..."

Critically, the trustee must exclude any "excluded period of leave of absence within the meaning of subsection 51(2) of the Act." This requires a highly technical historical audit of the member's employment record. If the trustee simply reports all unpaid leave without filtering out the specific statutory exclusions under section 51(2) of the Superannuation Act 1976, the resulting valuation will be mathematically incorrect, exposing the valuation to legal challenge.

The "Relevant Date" to "Appropriate Date" Substitution

Section 3(3) of the Determination contains a subtle but vital interpretive rule. When reading the Methods and Factors Approval, any reference to the "relevant date" must be read as a reference to the "appropriate date" for the purposes of this Determination. Actuaries or lawyers who look at the raw Methods and Factors Approval 2003 without applying this substitution may use the wrong operational date (such as the date of the valuation request rather than the formal separation date), invalidating the entire calculation.

Asymmetrical Exemptions under Regulation 64

A common point of confusion is that the Determination does not apply a uniform set of exemptions across all items.

• For growth phase items 1, 2, 4, 8, and 9, the broader default provisions of paragraphs 64(4)(a) to (i) of the Regulations are turned off.
• However, for growth phase items 3, 5, 6, and 7, only paragraphs 64(4A)(a) to (c) are turned off.

Compliance officers must carefully verify the exact item number of the member's interest on the CSS table before determining what information to withhold. Applying the wrong checklist will result in either an unlawful failure to disclose required information or an unauthorized disclosure of private member information.

Undisclosed Statutory Elections

For payment phase interests under item 2, the trustee must disclose whether the pensioner has made specific elections under section 57AA or section 61AB of the Act. Because these elections dictate how the pension is indexed and structured, overlooking these options (or failing to request them) will lead to a fundamentally incorrect calculation of the pension's present value.

To ensure full compliance with the Determination, the trustee of the CSS and legal practitioners must implement a rigorous, step-by-step verification process.

Step-by-Step Compliance Checklist for the CSS Trustee

                       [Received Form 6 Information Request]
                                         |
                                         v
                 [Step 1: Determine Phase of the CSS Interest]
                        /                             \
                       /                               \
               (Growth Phase)                    (Payment Phase)
                     |                                  |
                     v                                  v
       [Step 2: Identify CSS Table         [Step 2: Identify CSS Table
          Item (Items 1-8, 10)]               Item (Items 5, 9, 11, 12)]
                     |                                  |
                     v                                  v
       [Step 3: Map Exclusions]            [Step 3: Map Exclusions]
       - Suppress default info under       - Suppress default info under
         Reg 64(4) or 64(4A) as            
         specified in Column 3               Reg 64(3)(b) as specified 
                     |                       in Column 3
                     |                                  |
                     v                                  v
       [Step 4: Extract Custom Factors]    [Step 4: Extract Custom Factors]
       - Retrieve ABC, ASC, PCI, ERDA,     - Retrieve NIP, PCI, P, IP,
         etc., as of Appropriate Date        AIP, ANIP as of Appropriate Date
                     |                                  |
                     v                                  v
       [Step 5: Verify Admin Details]      [Step 5: Verify Pension Details]
       - DOB & Eligible Employee dates     - Pension type & CPI/nominal
       - Check s 110SL / 130B transfers      amounts for dependent children
       - Audit leave > 12 weeks            - Check s 57AA, 61AB, 110TBA
         (excluding s 51(2) leave)           elections
                     |                                  |
                     +-----------------+----------------+
                                       |
                                       v
                     [Step 6: Generate and Issue Statement]
                     - Format custom factors & admin data
                     - Issue to requesting party under Reg 64

Step 1: Determine the Phase of the Interest

Assess the status of the CSS member's interest as of the designated "appropriate date".