Family Law (Superannuation) (Provision of Information - NSW Police Superannuation Scheme) Determination 2010

This Determination modifies the information that the trustee of the NSW Police Superannuation Scheme must provide in response to a request under regulation 64 of the Family Law (Superannuation) Regulations 2001. It applies only to superannuation interests for which a method and factors have been approved under Part 5 of Schedule 2 to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the M & F Approval). The Determination reduces the trustee’s default information obligations for two specific categories of interest: those mentioned in clause 2 of Part 5 of Schedule 2 to the M & F Approval (item 1 of the table) and those mentioned in clause 6 of the same Part (item 2 of the table). For each category, the Determination specifies which information paragraphs from regulation 64(4) or 64(3) the trustee need not provide, and lists a narrower set of information that must be provided instead.

For item 1 interests, the trustee is not required to provide the information in regulation 64(4)(a), (b) and (d) to (i). Those paragraphs ordinarily require the current value of the interest, the method of valuation, the growth factor, the amount of any contributions, and other historical transaction data. The trustee must instead provide a defined set of valuation components: B, C, ESR, NEA (as defined in the M & F Approval), the member’s date of birth, the date that salary of office first became payable (relevant to contribution deduction commencement), the balance of any early release debt account, and a detailed history of previous splits including dates of payments or transfers and the values of entitlements and interests immediately before each split. That history must also include further valuation terms: Cs, TArd, AS, ESR, NEA, B, C, NEA (under the EFBProp definition), and CSProp.

For item 2 interests, the trustee is not required to provide the information in regulation 64(3)(b)(ii), (iv) and (v) (relating to growth factor components, the method of valuation and the date of valuation). The trustee must provide only the member’s date of birth and the type of superannuation allowance payable to the member.

The Determination is made under subregulations 64(7) and 64(7B) of the Family Law (Superannuation) Regulations, which empower the Attorney General to determine that certain information need not be provided or must be provided. It was made by the then Attorney General on 21 December 2010 and commenced the day after registration. The Determination does not alter the substantive right to split a superannuation interest or the trustee’s obligation to comply with a splitting order; it only affects the information that must be given in response to a pre‑split information request under regulation 64.

The Determination sits within a layered regulatory architecture. The overarching law is the Family Law Act 1975, Part VIIIB, which provides for the splitting of superannuation interests on divorce or separation. The Family Law (Superannuation) Regulations 2001 prescribe detailed rules, including regulation 64 on provision of information by trustees. The M & F Approval 2003 supplies the methods and factors for valuing particular superannuation interests; the Determination references only those interests covered by Part 5 of Schedule 2 to that Approval. The NSW Police Superannuation Act 1906 creates the scheme and defines terms such as “salary of office”. The Police Superannuation Regulation 2010 (NSW) creates the “early release debt account” which is relevant because early benefit access reduces the available pool for splitting.

Key defined terms in the Determination include:

• Early release debt account: an account created under subregulation 15(3) of the Police Superannuation Regulation 2010 (NSW). This account records the amount of benefits released early to a police officer under sections 12F(1) or 12G(1) of the NSW Police Superannuation Act. Its balance is part of the information that must be provided for item 1 interests.
• Flag lifting agreement, splitting order, superannuation agreement: these have the same meanings as in section 90MD of the Family Law Act 1975. A flag lifting agreement ends a flag (which prevents a split pending a future event). A splitting order is a court order that splits a superannuation interest. A superannuation agreement is a binding financial agreement that deals with superannuation.
• Salary of office: defined in subsection 1AA(1) of the NSW Police Superannuation Act. The date this salary first became payable marks the start of the period for which contributions were deducted under section 5(1) of that Act. This date is required information.
• M & F Approval: the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003. The Determination does not repeat the valuation method; it instead uses the defined terms from that Approval. The terms B, C, ESR, NEA, Cs, TArd, AS, EFBProps, EFBProp and CSProp all derive from the M & F Approval. These are actuarial components used to compute the value of defined benefit interests and the entitlement of the non‑member spouse.
• Regulations: the Family Law (Superannuation) Regulations 2001.

The Determination directly imposes duties on the trustee of the NSW Police Superannuation Scheme, which is the SAS Trustee Corporation (or its successor). The trustee must adjust its internal processes to ensure that when it receives a written request for information under regulation 64 in relation to a covered interest, it provides only the information in column 4 of the table and refrains from providing the information in column 3. This reduces the compliance burden on the trustee compared to the standard obligation, but it also imposes a specialised calculation requirement for the valuation components listed in column 4, which may require actuarial input or sophisticated administrative systems.

The member police officers of the NSW Police Superannuation Scheme are affected because their spouses or former spouses will receive less information about the member’s superannuation interest than they would under the default rules. This may affect the spouse’s ability to independently value the interest or challenge the trustee’s valuation. Members with early release debt accounts will have that balance disclosed, which reduces the net value available for splitting.

Spouses and former spouses of police officers who are parties to family law proceedings are the most directly affected in practice. If they seek information about a covered interest, they will not receive the current value, the growth factor, or the method of valuation under paragraph 64(4). Instead they will receive a set of valuation components defined in the M & F Approval. They then need to hire an actuary or family lawyer experienced with that Approval to translate those components into a dollar value. This increases transaction costs for the spouse, particularly in cases where the parties cannot agree on value and must rely on the trustee’s calculation.

Family lawyers and forensic accountants practising in family law must be familiar with the M & F Approval and the Determination to interpret the data provided. If the interest falls under item 2, the trustee supplies only date of birth and allowance type. This is so sparse that the spouse may struggle to determine even a rough value. In those cases the spouse may need to apply to the court for orders requiring the trustee to provide additional information, or the court may appoint a single expert valuer.

The Determination applies only to interests for which a method and factors have been approved under Part 5 of Schedule 2 to the M & F Approval. If a particular interest is not covered by that Part (for example, a new category of benefit not yet approved), the general regulation 64 obligations apply without modification. The scope of coverage therefore depends on the current version of the M & F Approval, which may have been amended after 2010.

The trustee’s primary duty under this Determination is to respond to a written request under regulation 64 for a covered superannuation interest by providing the information listed in column 4 of the relevant item in the table and by not providing the information listed in column 3. The trustee has no obligation to provide the information in column 3, even if the requesting party asks for it. The determination is binding and operates as a carve‑out from the default duty in regulation 64.

For item 1 interests, the trustee must provide: the valuation components B, C, ESR, NEA; the member’s date of birth; the date that salary of office first became payable under section 5(1) of the NSW Police Superannuation Act; the balance of the early release debt account (if any); and, for each prior splitting order, superannuation agreement or flag lifting agreement already served on the trustee, the date of any payment, release, transfer or rollover under paragraph 14P(3)(a) or (b) of the NSW Police Superannuation Act, together with the value of the entitlement immediately before that event, the value of the interest immediately before that event (determined under clause 2 of Part 5 of Schedule 2 to the M & F Approval), and the further valuation terms Cs, TArd, AS, ESR, NEA, B, C, NEA (per the EFBProp definition) and CSProp.

For item 2 interests, the trustee must provide only the member’s date of birth and the type of superannuation allowance payable to the member. No valuation components or financial figures are required.

The right of a person requesting information is limited by the Determination. A spouse may not demand the omitted information under regulation 64, but that does not prevent the spouse from seeking it under other provisions. For example, the Family Law Act section 90MC empowers the court to make orders for the provision of information about a superannuation interest. A spouse could apply to the court for an order requiring the trustee to supply additional information if the limited disclosure under this Determination makes it impossible to value the interest or exercise rights under a splitting order. The court could, in its discretion, order the trustee to produce more information, particularly if the trustee’s own valuation under the M & F Approval is opaque.

The trustee also retains the duty to comply with a splitting order or agreement under Part VIIIB of the Family Law Act and the Regulations. The Determination does not affect the trustee’s obligations when implementing a split; it only affects the pre‑split information stage.

The requesting party has no right to receive the early release debt account balance if the interest is an item 2 interest, because the Determination does not require that information for item 2.

The Determination itself does not create offence provisions or prescribe penalties. Non‑compliance with the obligation to provide the mandatory information is a breach of regulation 64 of the Family Law (Superannuation) Regulations 2001, as modified by this Determination. Regulation 64(9) states that a trustee must comply with a written request for information under that regulation, and failure to do so may constitute a contravention of the regulations. The Regulations are made under the Family Law Act 1975, and section 97 of that Act provides that a person who contravenes a regulation made under the Act is guilty of an offence punishable by a fine not exceeding 30 penalty units (or 50 penalty units for a body corporate). The exact penalty depends on the current value of a penalty unit under the Crimes Act 1914.

Enforcement is likely to occur through the family law court system rather than criminal prosecution. A spouse who does not receive the required information, or who receives incorrect information, may apply to the Federal Circuit and Family Court of Australia for an order compelling the trustee to provide the information. The court could make orders under section 90MC of the Family Law Act (information orders) or under its general injunctive powers. If the trustee repeatedly fails to comply, the court could find the trustee in contempt.

There is also a risk of civil liability if the trustee provides inaccurate information that causes financial loss. The trustee may owe a duty of care to both the member and the spouse when responding to information requests, though any such duty would be shaped by the statutory framework.

The note at the end of the Determination states that all legislative instruments are registered on the Federal Register of Legislative Instruments under the Legislative Instruments Act 2003. That Act provides for the scrutiny and possible disallowance of instruments by Parliament, but that is a parliamentary remedy, not an individual enforcement mechanism. Since the Determination was made in 2010 and has not been disallowed, it has the full force of law.

The Determination is part of a hierarchy of federal laws governing superannuation and family law. At the top is the Family Law Act 1975, particularly Part VIIIB which defines superannuation interests, splitting orders, superannuation agreements, and flag lifting agreements. The Family Law (Superannuation) Regulations 2001 (Cth) provide detailed operational rules, including the information‑provision regime in regulation 64. The Determination is made under subregulations 64(7) and (7B), so it operates as a subordinate instrument within that regulatory framework. It takes precedence over the default rules in regulation 64 for the specific interests it covers.

The Determination directly incorporates the M & F Approval 2003 by reference. The definitions of valuation components (B, C, ESR, NEA, Cs, TArd, AS, EFBProps, EFBProp, CSProp) are not set out in the Determination itself; they are defined in subclauses 3(1), 4(2), and 5(2) of Part 5 of Schedule 2 to the M & F Approval. Any amendment to that Approval automatically changes the content of the information obligations under the Determination, without the Determination itself needing amendment. Practitioners must therefore verify the current version of the M & F Approval.

The Determination interacts with the NSW Police Superannuation Act 1906 and the Police Superannuation Regulation 2010 (NSW). It adopts terms from those state laws: “salary of office” from section 1AA(1) of the Act, and “early release debt account” from subregulation 15(3) of the Regulation. Changes to those state laws could affect the meaning of the information that must be provided. For example, if the NSW government amends the early release provisions, the trustee would need to adjust the balance calculation accordingly.

The Determination does not interact with the Superannuation Industry (Supervision) Act 1993 (SIS) because the NSW Police Superannuation Scheme is a public sector scheme that is exempt from most SIS requirements. However, it may interact with the Privacy Act 1988 if the trustee discloses personal information about the member to a spouse; the trustee can rely on the determination as authorisation for disclosure.

In family law proceedings, the information provided under this Determination is admissible as evidence of the value of the superannuation interest, subject to the rules of evidence. A court may accept the trustee’s statement of B, C, ESR, NEA etc. as proof of those components, but if a party challenges the underlying assumptions, the court may require the trustee to explain the calculations or produce additional data. The Determination does not override the court’s power to order further information.

The source text for this Determination shows only the original instrument made by the Attorney General on 21 December 2010 and registered under the Legislative Instruments Act 2003. There is no indication in the instrument itself of any amendment history. It is a standalone determination that has not been amended by a subsequent instrument, based on the text provided. However, because the Determination incorporates definitions from the M & F Approval 2003 and the Police Superannuation Regulation 2010 (NSW), any changes to those documents effectively alter the content of the information obligations without the Determination needing formal amendment. For example, if the M & F Approval is updated to include new valuation factors for clause 2 or clause 6 interests, the meaning of terms like B, C or ESR may change. The Determination also refers to “the M & F Approval” as defined, so if that Approval is replaced by a later instrument, the reference would need to be updated. It is recommended that a compliance officer check the Federal Register of Legislation for any amending determinations or replacement instruments that may have affected the Determination since 2010. As of the date of analysis, no amending instruments are referenced in the provided text.

The source text for this Determination does not mention any litigation concerning its validity, interpretation or application. The determination is a legislative instrument rather than a court decision, so no litigation history is directly embedded. It is possible that the Determination has been considered in family law proceedings in the Federal Circuit and Family Court of Australia, particularly in contested valuations of NSW Police superannuation interests, but no cases are cited in or required by the instrument. The Determination is now over a decade old and may have been routinely applied without challenge. Given the limited information it requires trustees to provide, there are potential grounds for a spouse to argue that the Determination offends the requirements of procedural fairness or fails to give effect to the objects of Part VIIIB of the Family Law Act, but no such challenge is recorded in the source. The note at the end of the Determination refers to the Federal Register of Legislative Instruments, which provides a searchable record of the instrument and any related legal proceedings under the Legislative Instruments Act 2003, but that note is purely administrative. For the purposes of this deep dive, it must be reported that the source text contains no litigation history.

Several traps await practitioners who rely on this Determination without cross‑checking the referenced documents. First, the definition of “early release debt account” refers to subregulation 15(3) of the Police Superannuation Regulation 2010 (NSW). That NSW regulation may have been amended or replaced after 2010, and the current version must be checked. Any change to the account concept could alter the amount that the trustee must disclose as the balance.

Second, the valuation components B, C, ESR, NEA, Cs, TArd, AS, EFBProps, EFBProp and CSProp are defined only in the M & F Approval 2003. That approval is a substantial document with multiple schedules. Part 5 of Schedule 2 deals specifically with the NSW Police Superannuation Scheme. The definitions are not reproduced in the Determination, so a trustee or lawyer must obtain the correct version of the Approval and apply the current factors. The M & F Approval has likely been updated since 2003; the Determination’s reference to it as “the M & F Approval” is a static definition that would track to the current version unless the Determination itself is amended.

Third, the Determination only applies to interests mentioned in clause 2 or clause 6 of Part 5 of Schedule 2 to the M & F Approval. It does not apply to all interests in the NSW Police Superannuation Scheme. Interests that fall outside those clauses (for example, new benefit types added after 2010) are subject to the full information obligations under regulation 64. A trustee that automatically applies the reduced disclosure to all requests risks under‑complying with regulation 64.

Fourth, for item 2 interests, the information that must be provided is minimal: only date of birth and type of superannuation allowance. Without valuation components or a value, a spouse cannot readily determine what the interest is worth. The spouse may need to litigate to obtain more information, incurring substantial costs. The Determination does not permit the trustee to refuse a request for more detail, but it does allow the trustee to say that it has satisfied its obligation under regulation 64.

Fifth, the phrase “salary of office, as a member of the NSW Police Force, for which contributions were deducted under subsection 5(1) of the NSW Police Superannuation Act” must be interpreted precisely. The date is not the date of joining the scheme but the first date on which contributions were deducted. If a member had a period of unpaid leave or a variation in salary, the relevant date may not be the initial appointment date.

Sixth, the Determination uses the term “M & F Approval” with the year 2003 in the definition, but the Approval itself may have been amended multiple times. The year in the definition is part of the title; it does not freeze the content. Always check the compilations.

For the trustee, compliance begins with identifying whether a superannuation interest falls within the scope of the Determination. When a written request is received under regulation 64, the trustee must determine if the interest is one described in clause 2 or clause 6 of Part 5 of Schedule 2 to the M & F Approval. If it is, the trustee must apply the table in section 5. For a clause 2 interest (item 1), the trustee must calculate and provide the following in writing: B, C, ESR, NEA as defined in subclause 3(1) of Part 5; the member’s date of birth; the date that salary of office first became payable under section 5(1) of the NSW Police Superannuation Act; the balance of the early release debt account as at the date of the request; and for each prior splitting order or agreement that has been served on the trustee, the date of any payment or transfer under section 14P(3) of the NSW Police Superannuation Act, the value of the entitlement before that event, the value of the interest before that event (computed under clause 2 of Part 5), and the suite of additional terms: Cs, TArd, AS, ESR, NEA, B, C, NEA (EFBProp), and CSProp. For a clause 6 interest (item 2), the trustee need only provide the member’s date of birth and the type of allowance currently payable (e.g., invalidity pension, age retirement pension, preserved benefit).

The trustee must not provide the information listed in column 3 of the table for the relevant item. For item 1, this means the trustee must not provide the information in regulation 64(4)(a), (b) and (d) to (i), which includes the current cash value of the interest, the method of valuation, and historical transaction data. For item 2, the trustee must not provide the information in regulation 64(3)(b)(ii), (iv) and (v), which includes the growth factor, the method of valuation, and the date of valuation.

The trustee should maintain a register of all prior splitting orders and agreements served, along with the dates and amounts of any payments, transfers or rollovers, because those details must be provided when the same interest is the subject of a later request.

For parties seeking information, compliance means knowing which type of interest they are dealing with. If the spouse receives a response that provides only the limited information under this Determination, the spouse should obtain a copy of the M & F Approval and engage an actuary or family lawyer experienced with defined benefit valuations to interpret the components. The spouse may also request the trustee to provide a valuation using the method in the M & F Approval; the Determination does not compel the trustee to provide a dollar value, but the trustee may do so voluntarily. If the spouse believes the limited information is insufficient to assess the value for a property settlement, the spouse can apply to the court for an order under section 90MC of the Family Law Act requiring the trustee to provide additional information or an independent valuation.