Family Law (Superannuation) (Provision of Information — NSW State Authorities Non-contributory Superannuation Scheme) Determination 2010

This determination modifies the information that the trustee of the New South Wales State Authorities Non‑contributory Superannuation Scheme must provide (and may withhold) in response to requests under the Family Law (Superannuation) Regulations 2001 when those requests relate to certain superannuation interests in the scheme. It is a legislative instrument made under the Family Law Act 1975 and operates as a specific carve‑out from the default disclosure obligations that would otherwise apply. The determination sets out two categories of superannuation interest (described by reference to the valuation methods approved under the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, known as the M & F Approval). For each category, the determination specifies which items of information the trustee is not required to provide and which items it must provide instead.

Mechanically, the determination replaces the standard information requirements in paragraphs 64(7) and (7B) of the Regulations for these interests. For the basic benefit component of one interest type, the trustee does not have to provide the usual information listed in paragraphs 64(4)(a), (b) and (d) to (i) of the Regulations (such as details about the member’s salary history, benefit projections, and certain components). Instead, the trustee must provide specific actuarial data (C and B as defined in the M & F Approval), the member’s date of birth, the balance of any early release debt account, and particulars about any prior payments, transfers or rollovers made under a splitting order, superannuation agreement or flag lifting agreement, including the value of the entitlement and the interest at the time of the transaction, and the member’s days of eligible service before and after 1 July 1988. For the second interest type (item 2 in the M & F Approval table), the trustee need not provide information in paragraphs 64(4)(a) to (c) and must instead provide the actuarial values A and SC.

The practical effect is to tailor disclosure to what is necessary for valuing and splitting these particular interests under family law, while relieving the trustee of the burden of producing information that is either irrelevant or difficult to calculate for these non‑contributory, defined‑benefit style entitlements. The determination thus reduces compliance costs for the trustee and focuses the information flow on the data actually used in the valuation methodology approved for this scheme.

The determination relies on a series of defined terms drawn from both the Family Law framework and the governing New South Wales legislation. Basic benefit has the same meaning as in subsection 3(1) of the State Authorities Non‑contributory Superannuation Act 1987 (NSW); it is the core entitlement under that defined‑benefit scheme, typically calculated by reference to final average salary and years of service. Final average salary is defined in subsection 21(1) of that Act and is a key input for benefit calculations. Employee carries the meaning in the NSW Act, covering persons employed by certain NSW government authorities who are members of the scheme.

The early release debt account is an account created under subregulation 9(3) of the NSW State Authorities Non‑contributory Superannuation Regulation 2010, which tracks amounts released early to a member (for example, for severe financial hardship or compassionate grounds) and which must later be repaid or offset against the final benefit. The balance of this account is relevant to any splitting order because an early release reduces the value available for division.

Splitting order, superannuation agreement, and flag lifting agreement are defined by reference to section 90MD of the Family Law Act 1975. They are the instruments under which a superannuation interest is divided or flagged in family law property proceedings. A flag lifting agreement lifts a previously imposed flag so that the interest can be split.

The determination also defines the M & F Approval, which is the instrument that sets out the approved methods and factors for valuing particular superannuation interests, including those in this NSW scheme. The interests covered by this determination are those for which a method and factors have been approved under Part 9 of Schedule 2 to the M & F Approval. Part 9 deals specifically with the NSW State Authorities Non‑contributory Superannuation Scheme.

Eligible service is a concept under the NSW Regulation, used to calculate the benefit. The determination distinguishes between eligible service accrued before 1 July 1988 and after that date, because different benefit components may apply depending on when the service was rendered (the date marks a change in the scheme’s rules, likely relating to the introduction of productivity superannuation or the removal of certain tax concessions).

The determination directly affects the trustee of the NSW State Authorities Non‑contributory Superannuation Scheme. The trustee is the entity responsible for administering the scheme and responding to information requests under the Family Law (Superannuation) Regulations. The determination reduces the trustee’s default disclosure obligations for the specified interests but imposes a set of alternative information requirements that the trustee must meet. The trustee must have systems in place to capture and provide the specific data items (C, B, date of birth, early release debt account balance, transaction history, eligible service days) for the basic benefit component, and A and SC for the other interest.

Members of the scheme (the employees covered by the NSW Act) are affected because the determination shapes what information can be obtained about their superannuation interests in the context of a family law property settlement. If a splitting order or agreement is being negotiated or litigated, the member’s spouse or former spouse (the non‑member spouse) relies on the information provided by the trustee to value the interest and determine an appropriate split. The determination limits the information that the non‑member spouse can compel the trustee to produce for the interests covered. For the basic benefit component, the non‑member spouse will not be able to get the full set of information that would be available under the default regulation (such as salary history or benefit projections). Instead, the non‑member spouse receives actuarial parameters and transaction records, which may require expert interpretation by a forensic accountant or actuary to translate into a dollar value.

Legal practitioners and family law litigants are affected because they must be aware that standard information requests under regulation 64 will be met with a response that omits certain items. They must either accept the substituted information or seek additional information through other means (for example, by asking the member spouse to provide it directly, or by using regulation 63 which may still require information about other components). The court (the Family Court of Australia or the Federal Circuit and Family Court of Australia) may need to rely on the information provided to make orders under Part VIIIB of the Family Law Act. The court must ensure it has sufficient information to value the interest, and the determination’s limitations could affect the court’s ability to do so if the substituted information is inadequate.

The determination imposes a duty on the trustee to provide the information specified in column 4 of the table in section 5, and confers a corresponding right on the trustee to withhold the information listed in column 3. The duty to provide arises under paragraphs 64(7)(b) and (7B)(b) of the Regulations, while the right to withhold arises under paragraphs 64(7)(a) and (7B)(a). These paragraphs operate as exemptions from the default information provision obligations.

For item 1 (the basic benefit component), the trustee must provide:

• C and B, which are actuarial factors defined in the M & F Approval. C is likely a conversion factor for valuing the benefit and B is likely the basic benefit amount as defined in the NSW Act.
• The date of birth of the member (to determine age‑related factors).
• The balance of the early release debt account, if any. This is important because any early release reduces the pool available for splitting.
• For each splitting order, superannuation agreement or flag lifting agreement that has been served on the trustee, the date of any payment or release (under paragraph 27AJ(3)(a) of the NSW Act) to the person with the entitlement, or the date of any transfer or rollover (under paragraph 27AJ(3)(b)) to another superannuation fund or retirement savings account.
• For each such payment, release, transfer or rollover, the value of the entitlement immediately before the transaction, the value of the interest immediately before the transaction (determined in accordance with the M & F Approval method), and the member’s days of eligible service before and after 1 July 1988.

For item 2, the trustee must provide A and SC. A is likely the accumulation or account balance at the relevant date, and SC is likely the service component or a similar factor.

The trustee is not required to provide the information that would ordinarily be required under paragraphs 64(4)(a), (b) and (d) to (i) for item 1, and paragraphs 64(4)(a) to (c) for item 2. That includes items such as the member’s name, date of birth (for item 1, the date of birth is required as a substitute, so it is not withheld), the employer’s name, the member’s salary or contribution history, the accrued benefit amount, the withdrawal benefit, the vesting percentage, and the like. The effect is that the trustee avoids the cost of compiling and verifying that data, but the requesting party loses access to it.

The member and the non‑member spouse have a right to receive the substituted information from the trustee. They do not have a right to insist on the default information for these specific interests, unless they can obtain it through other provisions (such as regulation 63, which may cover other components, or by direct request to the member).

The determination itself does not create penalties. It is a modification of the trustee’s obligations under the Family Law (Superannuation) Regulations. The enforcement mechanism for a failure to provide the required information lies in the Family Law Act 1975 and the Regulations. If the trustee fails to provide the information that it must provide under the determination (i.e., the column 4 items), the trustee may be in breach of the Regulations. The Regulations do not specify a separate penalty for non‑compliance, but the court may make orders under the Family Law Act to compel compliance, including orders for costs or for the trustee to attend court to explain the failure. In extreme cases, a failure could be treated as a contempt of court if the trustee has been served with a court order requiring the information.

Conversely, if the trustee provides information that it is not required to provide (for example, it chooses to provide the withheld information despite the exemption), there is no penalty. The determination only exempts the trustee from providing it; it does not prohibit the trustee from voluntarily providing additional information. The trustee could choose to provide the full set of information if it wishes, but the determination does not require it.

A party (such as the non‑member spouse) who is dissatisfied with the information received may apply to the court for further orders. The court could order the trustee to provide additional information if it is necessary for the determination of the property proceedings. However, the court would likely give weight to the determination and the fact that the legislated carve‑out was intended to limit the trustee’s burden. The non‑member spouse may need to rely on other sources, such as expert evidence or discovery from the member spouse.

The determination also interacts with the obligation of full and frank disclosure that exists in family law proceedings. A member spouse is generally required to disclose all relevant financial information, including superannuation. If the member spouse has access to the withheld information (for example, their salary history or benefit projections from the scheme), they may be required to produce it directly. The determination only affects the trustee’s obligation; it does not relieve the member spouse of their own disclosure duties.

This determination operates within a layered legislative framework. At the top is the Family Law Act 1975, Part VIIIB of which deals with superannuation interests. The Family Law (Superannuation) Regulations 2001 provide the detailed rules for obtaining information about superannuation interests from trustees, including the default disclosure requirements in regulation 64. This determination is made under those Regulations (likely under a power to prescribe exceptions or modifications) and overrides the default requirements for the specified interests.

The M & F Approval (Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003) is another legislative instrument that sets out the approved methods and factors for valuing superannuation interests. This determination applies only to interests for which a method and factors have been approved under Part 9 of Schedule 2 to the M & F Approval. That means the determination is tied to the valuation methodology approved for the NSW State Authorities Non‑contributory Superannuation Scheme. If the M & F Approval is amended (for example, to update factors), the determination would continue to apply unless it is also amended.

The NSW State Authorities Non‑contributory Superannuation Act 1987 (NSW) and the State Authorities Non‑contributory Superannuation Regulation 2010 (NSW) govern the scheme’s operation. The determination borrows definitions from those NSW instruments and references specific provisions (such as paragraphs 27AJ(3)(a) and (b) for payments and transfers, and clause 5 of the Regulation for eligible service). Any amendment to those NSW provisions could affect the meaning of the information required under this determination. For example, if the NSW Regulation changes the definition of eligible service or the method of calculating days, the trustee would need to apply the updated definition.

The determination also interacts with regulation 63 of the Family Law (Superannuation) Regulations. The note to item 1 of the table states that information about other components of the interest may be required to be provided under regulation 63. Regulation 63 deals with valuation information that a trustee must provide on request for the purpose of working out the value of a superannuation interest. So even though the determination reduces disclosure for the basic benefit component, the trustee may still have to provide information about other components (such as the employer‑financed component or the productivity component) under regulation 63. A requesting party could therefore seek a broader set of information by framing the request under regulation 63 rather than regulation 64.

The instrument as provided is the Family Law (Superannuation) (Provision of Information , NSW State Authorities Non‑contributory Superannuation Scheme) Determination 2010. The text does not include any amendment history. It is a standalone determination that came into effect in 2010. Given the age of the instrument (over a decade old), it is possible that it has been amended since its original enactment, but the source provided does not show any amendments. The user should check the Federal Register of Legislation for the current compilation. If amendments exist, they would be registered by the Office of Parliamentary Counsel. Typical amendments could include updating references to the NSW Regulation (for example, the 2010 NSW Regulation was replaced or amended), updating the M & F Approval references if factors were revised, or expanding the table to cover additional interests. Without the current compilation, the analysis here assumes the text as provided.

The determination was made under the Family Law Act and is a legislative instrument subject to disallowance and sunsetting under the Legislation Act 2003. It would have been tabled in Parliament and may have been subject to scrutiny by the Senate Scrutiny of Delegated Legislation Committee. No information on objections or disallowance is in the source.

The source does not refer to any cases that have interpreted or applied this determination. It is a relatively obscure instrument dealing with a specific NSW public sector superannuation scheme. It is unlikely to have been the subject of reported litigation. However, the determination could be considered in family law property proceedings where the superannuation interest of a member of the NSW State Authorities Non‑contributory Superannuation Scheme is in issue. In such proceedings, a party might argue that the information provided by the trustee under this determination is insufficient for the court to make a just and equitable order. The court would then need to decide whether to order additional information from the trustee or from the member spouse directly.

There may be unreported decisions in the Federal Circuit and Family Court or the Family Court of Australia where the adequacy of information under this determination was challenged. Practitioners should search case law databases for any decisions mentioning the determination by name or referencing the NSW State Authorities Non‑contributory Superannuation Scheme. The Family Law Reports or the Australian Law Reports are possible sources, but no leading case appears to have elevated this determination to a point of principle.

If litigation did arise, it would likely focus on the scope of the trustee’s exemption versus the court’s power to order information under section 90XW of the Family Law Act, which gives the court broad discretion to order a trustee to provide information in relation to a superannuation interest. The court could potentially override the determination if it considers that the determination’s limits prevent the court from properly exercising its jurisdiction. However, the court would be hesitant to override a legislative instrument unless it is clearly inconsistent with the Act.

The determination is narrow in scope, and several subtleties could catch out practitioners.

First, the determination applies only to superannuation interests for which a method and factors have been approved under Part 9 of Schedule 2 to the M & F Approval. That Part covers specific types of interests within the NSW State Authorities Non‑contributory Superannuation Scheme. Not all interests in that scheme are covered. If the scheme also offers accumulation‑style benefits or other products, the determination does not apply to them. The default disclosure obligations under regulation 64 would then remain in full force.

Second, the determination deals only with the basic benefit component of the interest in item 1. The note explicitly states that information about other components may be required under regulation 63. A practitioner who relies solely on the information provided under this determination may miss other valuable components of the interest, such as an employer‑financed component or a productivity component. The non‑member spouse should specifically request information about all components separately.

Third, the information that must be provided (C, B, date of birth, early release debt account, prior splits) is technical. C and B are actuarial factors defined in the M & F Approval. Understanding them requires reference to that instrument and possibly to the actuarial assumptions behind it. A lawyer without an actuary may not be able to calculate the value of the interest from those numbers alone. Similarly, eligible service days before and after 1 July 1988 are used to apportion benefit components that may have different tax or vesting characteristics. A layperson will struggle to interpret these.

Fourth, the early release debt account balance is crucial. If a member has taken an early release, that reduces the benefit available for splitting. The determination requires the trustee to provide this balance, but the non‑member spouse must be aware that the balance could reduce the value of the interest significantly. The determination does not require the trustee to provide any information about whether the early release was for hardship or compassionate grounds, which might affect the characterisation of the debt.

Fifth, the determination does not require the trustee to provide the current value of the interest. Instead, it provides parameters that allow the value to be calculated. For item 1, the value is determined using the method in the M & F Approval, which uses C and B. For item 2, A and SC are provided. The requesting party must then calculate the value themselves or engage an expert.

For the trustee of the NSW State Authorities Non‑contributory Superannuation Scheme, compliance requires having systems that can retrieve the following data for each relevant interest:

• For the basic benefit component (item 1): the actuarial values C and B (as defined in the M & F Approval); the member’s date of birth; the balance of any early release debt account; for each splitting order, superannuation agreement or flag lifting agreement served, the date of any payment, release, transfer or rollover to the person with the entitlement; the value of the entitlement immediately before that transaction; the value of the interest immediately before that transaction calculated using the M & F Approval method; and the member’s days of eligible service before and after 1 July 1988.

• For item 2 interests: A and SC as defined.

The trustee should ensure that these data items can be generated promptly when a request is received under regulation 64. The trustee may also choose to provide additional information voluntarily to assist the requesting party, but it is not required to do so.

For legal practitioners acting for a non‑member spouse, the compliance obligation is to understand that a standard request under regulation 64 will yield a limited set of information. The request should specifically reference the determination and ask for the items listed in column 4. The practitioner should also consider making a separate request under regulation 63 for information about other components of the interest, and should ask the member spouse for any information they hold (such as annual benefit statements, correspondence about early releases, or salary details). The practitioner should engage an actuary or a superannuation valuation expert to interpret the C, B, A and SC values and to calculate the value of the interest. The expert should also review the eligible service days to determine the correct benefit formula.

For the member spouse, the obligation is to cooperate with the disclosure process. The member spouse should obtain from the trustee any information they receive and provide it to their spouse or the court. The member spouse should also disclose any early release amounts they have received and any documents relating to prior splitting orders.

For the court, when making orders about a superannuation interest covered by this determination, the court should ensure that the information provided is sufficient to make an order under section 90XTA or 90XTB of the Family Law Act. If the information is insufficient, the court may order the trustee to provide further information under section 90XW, or may rely on expert evidence to supplement the data. The court should be mindful that the determination was intended to reduce the trustee’s burden, but that should not impede the court’s ability to achieve a just and equitable property settlement.