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

Superannuation interest in the SS Scheme: The SS Scheme is the defined benefit superannuation scheme constituted by the Superannuation Act 1916 (NSW). A person's interest in that scheme is a right to future benefits determined by formulas based on final average salary, years of service, and employer productivity contributions. For family law purposes, that interest is a financial resource subject to adjustment in property proceedings.

Splitting order / superannuation agreement / flag lifting agreement: These are the three mechanisms under Part VIIIB of the Family Law Act 1975 that can alter the ownership of a superannuation interest. A splitting order is a court order that divides the interest into two separate entitlements. A superannuation agreement is a private agreement between the parties that, once made into a court order or registered under the Act, has the same effect. A flag lifting agreement lifts a flag (a temporary hold on dealing with the interest) to allow a split to proceed. Each triggers the trustee's obligation to provide information and, ultimately, to implement the split.

Regulation 64 of the Family Law (Superannuation) Regulations 2001: This is the default provision that prescribes the information a trustee must give on request relating to a superannuation interest. Paragraphs 64(4)(a) to (i) list nine standard items: the person's name and contact details, the employer, the type of interest, the value determined in accordance with the applicable method, the date of valuation, any conditions affecting the value, and details of any payment split or flag already in place. Paragraph 64(4A)(a) to (c) deals with additional information for certain interests where the value is not yet determined (such as where the person has not yet retired). The Determination overrides these paragraphs for the SS Scheme interests it covers.

M & F Approval Part 8 Schedule 2: The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 is the legislative instrument that prescribes the actuarial methods and factors for valuing superannuation interests for family law purposes. Part 8 of Schedule 2 specifically deals with the SS Scheme. It contains multiple clauses that define different categories of interest based on the member's status (e.g., active member, deferred benefit member, pensioner) and the elections they have made under the NSW Superannuation Act. Clauses 11, 15, 18, and 24 are key examples referenced in the Determination's table.

Clause 11 interest: An interest of a person who has elected under paragraph 20AB(1)(b) of the NSW Superannuation Act to make provision for a benefit provided by Division 3A of Part 4 of that Act. That Division deals with the preservation of benefits and the ability to take a lump sum or pension on exit from the scheme. The valuation of such an interest uses factors like P1 and P2 (which relate to the lump sum and pension components) and requires information about the election date and any subsequent splits.

Clause 15 interest: An interest of a person who has elected under paragraph 52N(1)(a) of the NSW Superannuation Act to defer a benefit under section 21(1) or (1B) of that Act, in accordance with Division 3B of Part 4. This is a deferred benefit interest where the member has chosen to delay taking their benefit after leaving the scheme. Valuation uses factors LS (lump sum) and P (pension).

Clause 18 interest: An interest preserved under Division 3D of Part 4 of the NSW Superannuation Act. This is for members who have preserved their benefits in the scheme after leaving employment. Valuation uses LS and P.

Clause 24 interest (pension): An interest where a pension is payable. The information required is limited to the date of birth and the type of pension.

Transaction data (Be, Bs, CDe, CDs, TPCIs, V0, V1, TPCIe): These are actuarial parameters used to calculate the value of the interest split when a payment, release, transfer, or rollover has already occurred. For example, Be and Bs represent the employer and employee components of the benefit before and after the split; CDe and CDs are the concessional and non-concessional contributions components; TPCIs is the total preserved contributions at the time of the split; V0 and V1 are valuations before and after the split; and TPCIe is the total preserved contributions after the split. This level of detail is necessary to allow the spouse's adviser to reverse-engineer the split calculation and ensure it was done correctly under the M & F Approval.

The Determination directly affects three categories of actors: the trustee of the SS Scheme (the SAS Trustee Corporation, which administers the scheme); current and former members of the SS Scheme who are involved in family law proceedings; and the spouses or former spouses of those members who seek information to exercise rights under Part VIIIB of the Family Law Act 1975.

The trustee is the primary duty-bearer. For each of the ten identified interest types, the trustee must adjust its standard information-gathering and disclosure processes. It must identify which interest type the member holds (which may require knowledge of the member's election history under the NSW Superannuation Act) and then produce the specific data set in column 4 while omitting the data set in column 3. This adds complexity to the trustee's compliance infrastructure: staff must be trained to recognise clause 11, clause 15, clause 18, and clause 24 interests; they must have access to the relevant dates (election dates, exit days, dates of applications under Schedule 23); and they must be able to calculate or retrieve the actuarial components like P1, P2, Be, Bs, CDe, CDs, V0, V1, and TPCIe. For many of these, the trustee must already maintain records of past splits, so the marginal burden may be moderate. But for members who have multiple elections or who are in complex preservation phases, the trustee may need to consult actuarial services.

Members of the SS Scheme are indirectly affected. The Determination shapes the information that is available to their spouses. For example, a member who has not yet made an election under Division 3A will have an interest that falls under item 1, where no standard information under paragraphs 64(4)(a)-(i) is required. This means the spouse cannot obtain from the trustee the basic valuation, member details, or split history through the regulation 64 route. The spouse would need to rely on the member's own disclosure (which may be incomplete or contested) or apply for a different type of information under other provisions (such as a formal valuation pursuant to a court order). This asymmetry could disadvantage a spouse who lacks the bargaining power to compel the member to release the information. Conversely, for interests where a split has already occurred (items 2-10), the Determination mandates detailed transaction data that makes the trustee's disclosure much more useful for verifying past splits and projecting future outcomes.

Spouses and their legal representatives are the ultimate end-users of the information. They must understand which interest type applies to the member and what information they are entitled to receive under this Determination. If they request information under regulation 64 without specifying the interest type, the trustee may respond selectively based on the Determination, potentially causing confusion if a spouse expects to receive the full list from paragraphs 64(4). Legal practitioners advising spouses in property settlements involving SS Scheme interests must familiarise themselves with this Determination to ensure that their requests are correctly framed and that they receive all the information they are entitled to. This creates a specialised knowledge burden for family lawyers in New South Wales, particularly those who do not routinely handle defined benefit superannuation.

The community of public servants and other employees covered by the SS Scheme is a broad population (including teachers, police, firefighters, and other state government employees). Every time one of these members divorces, this Determination governs the information flow. The scheme is a large defined benefit fund, and the number of divorces per year among members is likely in the hundreds. The Determination thus has a systemic effect on litigation costs in the Family Court of Australia and the Federal Circuit and Family Court of Australia: it can reduce the need for interlocutory applications for disclosure if parties know precisely what information is available, but it can also lead to disputes over whether the trustee has provided the correct information (e.g., whether the trustee correctly classified the interest under the M & F Approval). The Determination does not affect the underlying valuation methodology or the amount that can be split; it only affects the information that facilitates that split.

Trustee's duty to provide information: Under regulation 64 of the Regulations, a trustee must, upon written request from a person entitled (a spouse or former spouse), provide information about a superannuation interest. This Determination modifies that duty for SS Scheme interests covered by an approved valuation method under Part 8 of Schedule 2 to the M & F Approval. The trustee is not required to provide the information listed in column 3 of the table, but must provide the information listed in column 4. This is a binary modification: the trustee cannot choose to provide column 3 information in addition to column 4 unless the requesting party specifically asks for it outside the regulation 64 framework (e.g., by consent). The duty to provide column 4 information is absolute: if the member's interest falls within the description in the row, the trustee must gather and supply those data points.

Rights of the requesting spouse: The spouse has a right to receive the column 4 information within the timeframes prescribed by regulation 64 (currently 28 days after the request, or a longer period if the trustee notifies the requester of an extension). The spouse does not have a right to demand the column 3 information under regulation 64 for these interests; if the spouse believes that information is necessary, they must either seek it from the member directly or obtain a court order compelling the trustee to provide it under a different power (such as section 90XG of the Family Law Act, which allows the court to order a trustee to provide information). This limitation on the default disclosure may catch practitioners off guard, particularly for item 1 interests where the spouse gets no standard information at all.

Member's rights: The member retains the right to obtain information about their own interest under other provisions of the Regulations (e.g., regulation 63, which allows a member to request information about their own interest). The Determination does not affect that right. The member also has privacy interests: some of the column 4 information (such as election dates and exit days) is personal information that the trustee must disclose to the spouse. The Privacy Act 1988 (Cth) generally permits this disclosure because it is authorised by the Regulations and the Determination, which are legislative instruments.

Interaction with M & F Approval: The Determination references specific clauses of the M & F Approval. The trustee must correctly interpret which clause applies to the member's interest. For example, a clause 11 interest (item 2) is held by a person who has elected under paragraph 20AB(1)(b) of the NSW Superannuation Act to make provision for a Division 3A benefit. If the member has not made that election, they do not hold a clause 11 interest, and the Determination does not apply. Instead, the trustee must comply with the default regulation 64 obligations. This creates a classification duty: the trustee must maintain records of each member's election history and apply the Determination accordingly.

Duty to update information: Where a split has already occurred, column 4 for items 2, 7, and 9 requires the trustee to provide details of each payment, release, transfer, or rollover that took place under NSW Superannuation Act paragraphs 61WB(3)(a) or (b), including dates, values of the entitlement, values of the interest, and the actuarial components (Be, Bs, CDe, CDs, TPCIs, V0, V1, TPCIe, P1, P2, LS). This means the trustee cannot simply provide current information; it must also track historical split events. The trustee has a duty to maintain records of past splits and produce them on request. For a spouse who was involved in a prior split, this information is invaluable for ensuring that the split was correctly implemented.

No duty to provide general advice: The trustee is only required to provide the specified information. It is not required to explain the meaning of the actuarial components or to advise the spouse on the legal implications. The spouse must interpret the data using the M & F Approval and obtain independent legal and financial advice. This allocation of responsibility is efficient because the trustee is not equipped to give legal advice, and the spouse's adviser is in the best position to apply the valuation methodology.

The Determination itself does not create any separate penalty provisions. It modifies the trustee's obligations under the Family Law (Superannuation) Regulations 2001, which are subordinate legislation under the Family Law Act 1975. Failure to comply with the obligation to provide information under regulation 64 (as modified by this Determination) could expose the trustee to several enforcement mechanisms.

Civil penalty under the Regulations: Regulation 64 is subject to the enforcement provisions in Part 7 of the Regulations. Regulation 72 provides that if a trustee fails to comply with a request for information under regulation 64 within the required period, the person who made the request may apply to the court for an order directing the trustee to comply. The court can make orders to enforce the obligation. This is the primary remedy: specific performance rather than a monetary penalty. The court can also make orders for costs against the trustee.

Contempt of court: If the trustee is directed by court order to provide information and fails to do so, the trustee (or its officers) could be liable for contempt of court, which carries penalties including fines or imprisonment (although imprisonment of corporate officers is rare and would require proof of wilful disobedience). This avenue is theoretical for most cases because trustees generally comply with court orders.

Administrative sanctions: The trustee of the SS Scheme is the SAS Trustee Corporation, a statutory body under NSW law. If it consistently fails to meet its obligations under Commonwealth law, the Commonwealth Attorney-General (who made this Determination) could potentially amend the Determination to impose even stricter disclosure requirements, or the Commonwealth could seek an injunction from the Federal Court. More practically, poor compliance could lead to complaints to the Commonwealth Ombudsman or the Australian Prudential Regulation Authority (APRA), although the SS Scheme is a public sector scheme not regulated by APRA, so that avenue is closed. The NSW Ombudsman could investigate maladministration.

Liability for damages: If the trustee's failure to provide accurate and timely information causes financial loss to a spouse (e.g., because the spouse enters into a property settlement based on incorrect information and later discovers a higher value), the spouse could potentially sue the trustee in tort for negligent misstatement or breach of statutory duty. However, the Regulations and the Determination do not expressly create a private right of action for damages. The spouse would need to establish a common law duty of care, which is uncertain given that the trustee's primary duty is to the member, not the spouse. The determination does not modify that common law position.

Enforcement by the member: The member also has standing to enforce the trustee's duties under the scheme's governing rules. If the trustee provides information to the spouse that breaches privacy or is inaccurate, the member could seek injunctive relief or damages under NSW superannuation law. However, the Determination authorises the disclosure to the spouse, so a privacy claim would be difficult.

Interaction with the M & F Approval: The trustee must comply with the valuation methods in the M & F Approval when calculating the amounts to be disclosed (e.g., V0, V1, TPCIe). If the trustee uses an incorrect method, the information provided under column 4 may be wrong. The spouse could then apply to the court for an order that the trustee recalculate the values. The court can refer to the M & F Approval to determine correctness.

Overall, enforcement is complaint-driven and court-centred. There is no automatic audit or regulator monitoring compliance with this Determination. The burden falls on the spouse (or the member) to monitor the trustee's response and seek court orders if the information is incomplete or incorrect. That assumes the spouse knows exactly what information they are entitled to, which is not always the case. Legal practitioners must be vigilant and, if necessary, file applications for particular discovery if the trustee's response seems incomplete. The Determination does not require the trustee to certify that all required information has been provided; the trustee merely answers the request. If the trustee omits a data point without stating that it is not applicable, the spouse may not realise it is missing.

Family Law Act 1975 (Cth): The Determination is made under regulations that are themselves made under Part VIIIB of the Family Law Act. Part VIIIB deals with superannuation interests and allows courts to make orders splitting such interests. The Determination does not alter the court's power to split an interest; it only affects the information the trustee must provide before or after a split. The Act also imposes obligations on trustees to give effect to splitting orders (section 90XZH). The information provided under this Determination, particularly the transaction data in items 2, 7, and 9, helps the spouse ensure that the trustee gave effect to the order correctly.

Family Law (Superannuation) Regulations 2001: This is the parent instrument. The Determination explicitly modifies regulation 64, which is the core disclosure provision. It does not modify any other regulation, such as regulation 65 (which allows the trustee to require payment of a fee for providing information), regulation 63 (member's own information request), or regulations dealing with the implementation of splits (regulations 66-70). Those regulations continue to apply in full to SS Scheme interests.

Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003: The Determination cross-references the M & F Approval extensively. The valuation definitions (P1, P2, LS, Be, Bs, etc.) are taken directly from clauses of Part 8 of Schedule 2 to the M & F Approval. Any amendment to the M & F Approval that changes those definitions will automatically affect the meaning of the information the trustee must provide under this Determination, without needing to amend the Determination itself. That is efficient but creates a risk of inconsistency if the M & F Approval is updated and the Determination is not cross-checked.

Superannuation Act 1916 (NSW): The Determination uses terms defined in that Act, such as "exit day" and references to Division 3A, 3B, and 3D of Part 4. It also refers to specific provisions like sections 52IA(1), 52N(1)(b), and Schedule 23. The trustee must be familiar with NSW superannuation law to determine which interest type applies. For example, knowing whether a person is taken to have elected under Schedule 23 requires reading that Schedule. This creates a dual Commonwealth-state legislative interaction: the Determination is a Commonwealth instrument, but its operation depends on the meaning of NSW legislation. Disputes over the classification of an interest may require interpretation of NSW law by a Commonwealth court.

Privacy Act 1988 (Cth): The disclosure of personal information (date of birth, election dates, exit days, transactional details) to a spouse under this Determination is authorised by law. The Privacy Act's Australian Privacy Principles (APPs) permit such disclosures when required or authorised by or under an Australian law. The Determination is a legislative instrument that expressly obliges the trustee to provide that information, so the trustee is not in breach of APP 6 (use or disclosure) for that purpose. However, the trustee must not disclose information beyond what is required by column 4; additional disclosure could be a breach.

Legislative Instruments Act 2003 (Cth): The Determination was registered on the Federal Register of Legislative Instruments. It is a legislative instrument with the force of law. It was subject to disallowance by either House of Parliament within 15 sitting days after tabling. Since it is dated 21 December 2010 and has not been amended, it presumably was not disallowed. It must be read together with any other instruments that modify regulation 64 for other schemes (e.g., there are similar determinations for other public sector schemes like the Commonwealth Superannuation Scheme, the Public Sector Superannuation Scheme, and the Military Superannuation and Benefits Scheme). Each has its own determination with different information requirements.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021: The rules governing family law proceedings require parties to provide full and frank disclosure of financial resources. The information obtained from the trustee under this Determination will be used to satisfy that disclosure obligation. If the spouse cannot obtain certain information under this Determination (e.g., for an item 1 interest), the court may order the spouse to provide a valuation report from an actuary. The court has inherent power to require further information, overriding the limitation in column 3.

State Records Act 1998 (NSW): The trustee's duty to retain records of splitting events and member elections is governed by NSW recordkeeping law. The Determination does not directly impose recordkeeping obligations, but the trustee must have records to comply with column 4 requests. If the trustee has not kept adequate records (e.g., of past splits), it may be unable to comply, exposing it to enforcement under the Regulations.

Acts Interpretation Act 1901 (Cth): This Act applies to the interpretation of the Determination. Because the Determination refers to provisions of the NSW Superannuation Act that may be amended, the Interpretation Act's rules about references to other Acts may apply (e.g., section 46AA: references to an Act include that Act as amended). This means if the NSW Parliament renumbers Division 3A, the Determination still refers to it.

According to the source text and the Federal Register of Legislative Instruments, this Determination is the 2010 version. The title indicates it replaces an earlier 2007 determination of the same name. The covering image shows "Family Law (Superannuation) (Provision of Information - NSW State Superannuation Scheme) Determination 2010". The previous version was made on 27 November 2007 and commenced on 28 November 2007. The 2010 Determination repealed and replaced it, but the source text does not provide the text of the 2007 instrument. The only substantive difference observable from the metadata is the change in date and the signing by Attorney-General Robert McClelland. There is no indication of any subsequent amendments. The Determination has been in force since the day after registration (presumably late December 2010 or early January 2011). Because it is a legislative instrument, it could be amended by a later determination of the same type, but no such amendment is apparent from the source.

The absence of amendment history might suggest that the information requirements have been stable for the SS Scheme. However, the underlying regulations (the Family Law (Superannuation) Regulations 2001) have been amended several times since 2010, and the M & F Approval has been updated. The Determination may rely on provisions of the Regulations that have been renumbered or repealed. For example, if paragraphs 64(4)(a)-(i) have been renumbered, the references in the Determination may become ambiguous. Practitioners should check the current compilation of the Regulations to confirm that the paragraph references are still correct. Similarly, the M & F Approval definition of clause 11, 15, 18, or 24 interests may have changed. A prudent user should verify that the applicable M & F Approval is still in force and that Part 8 Schedule 2 remains unamended in relevant respects. If the M & F Approval has been replaced by a new instrument, this Determination would likely need to be updated to cross-reference the new instrument, otherwise it might become inoperative due to misidentification of the interest categories.

The note at the end of the source text indicates that all legislative instruments are registered on the Federal Register of Legislative Instruments (now the Federal Register of Legislation). The user can check that register for any amending instruments or sunsetting notices. The Legislation Act 2003 (Cth) provides for automatic repeal of legislative instruments after 10 years unless reviewed. This Determination was made in 2010, so it would have been subject to sunsetting in 2020. If it was not reviewed and remade, it may have been repealed automatically. The source text provided is from 2010; the user must confirm its current status. If it has sunset, the default regulation 64 obligations would apply again to the SS Scheme, which would be a significant change. Given the age, it is highly likely that a newer determination has been made, or the instrument has been remade or exempted from sunsetting. The user should not rely on this 2010 version without checking the current law.

The source text does not refer to any court cases. There is no known reported litigation specifically interpreting this Determination. Because the Determination is purely procedural, disputes are more likely to arise in the context of broader family law property proceedings or in reviews of the trustee's decision-making. A spouse who received insufficient information might challenge the trustee's response, but that would typically be resolved by consent orders for further disclosure rather than a published judgment. The Family Court of Australia and the Federal Circuit and Family Court of Australia hear many cases involving superannuation splits, but few turn on the precise content of a determination like this.

Potential grounds for litigation include: (1) whether the trustee correctly classified the member's interest under the M & F Approval (e.g., whether the member held a clause 11 interest or a clause 1 interest at the time of the request); (2) whether the trustee provided all column 4 information (e.g., omitted one of the actuarial components); (3) whether the trustee calculated the components correctly (e.g., used the wrong formulas for Be and Bs); (4) whether the trustee has a valid reason for not providing information (e.g., the member has not made a relevant election, so the interest does not fall within any row); (5) whether the trustee can charge a fee for providing the column 4 information (regulation 65 allows a reasonable fee). Cases under similar determinations for other schemes (e.g., the Commonwealth Superannuation Scheme Determination) may give guidance, but they are not binding.

The absence of litigation history does not mean the Determination is problem-free. It may simply mean that disputes are settled early or handled through administrative complaints. The complexity of the columns of data makes it difficult for a lay spouse or even a generalist lawyer to know if all required information has been provided. A spouse who receives a response from the trustee listing only the date of birth and type of pension (for a clause 18 interest) might not realise that the trustee also should have provided LS, P, and all the transaction data for each split. Error in the trustee's classification is a real risk: a member who has elected to take a benefit under Division 3A might be incorrectly treated as a clause 1 interest if the trustee's records are not updated. The spouse would then receive no information under column 4, which could prejudice the settlement.

From an economic perspective, the lack of litigation suggests either high compliance (the trustee does it correctly) or high transaction costs of enforcement (spouses cannot afford to litigate over missing information). The latter is more likely: the cost of going to court to compel further disclosure often exceeds the benefit of getting the information, especially if the superannuation interest is not very large. This creates a structural imbalance: the trustee has little incentive to go beyond its interpretation of the Determination, and the spouse has weak enforcement power. The Determination thus relies on the trustee's goodwill and professionalism, which may be adequate but should not be assumed.

Item 1 trap: For a standard SS Scheme member who has not yet elected a Division 3A benefit (i.e., most current employees), the trustee is not required to provide any of the nine standard pieces of information under paragraphs 64(4)(a)-(i). That means no name, no employer, no type of interest, no valuation, no split history, nothing. A spouse requesting information under regulation 64 for such a member will receive an empty response. This could be a rude shock. The spouse must either obtain the information from the member (who may not know) or seek a court order for a valuation. Practitioners should immediately identify whether the member has made the relevant election under the NSW Superannuation Act. If not, they must prepare for a more expensive disclosure process.

Clause 11 interest vs. clause 1 interest: The distinction between an interest under clause 11 (item 2) and an interest under clause 1 (rest of Part 8) is critical. If the trustee misclassifies a clause 11 interest as a clause 1 interest, the spouse gets nothing (column 3 says all paragraphs 64(4)(a)-(i) are not required). The trustee might not know whether the member elected under paragraph 20AB(1)(b) of the NSW Superannuation Act. The spouse may need to ask the member directly to confirm their election status. The Determination does not place a duty on the trustee to investigate the member's election history proactively; the trustee presumably uses its records. If the records are incomplete, the trustee may assume no election and apply item 1.

Transaction data for prior splits: Items 2, 7, and 9 require the trustee to provide details of each splitting order, superannuation agreement, or flag lifting agreement that has been served on the trustee, including dates of payment/release/transfer/rollover, values, and actuarial components. This is a massive data dump. The trustee must have kept records of all past splits. If the scheme has been administratively merged or if records were not kept properly, the trustee may be unable to comply. The spouse would then have grounds to complain, but may not get the information.

Stale references to Regulations: The Determination refers to paragraphs 64(4)(a)-(i) and 64(4A)(a)-(c). The Regulations have been amended multiple times since 2010. It is possible that the paragraph numbers have changed (e.g., because new subregulations were inserted). A strict reading of the Determination would refer to those exact paragraph numbers as they existed at the time the Determination was made. If the Regulations have been renumbered, a court might treat the Determination as still referring to the current equivalent content, or it might find the Determination inoperative. Practitioners should check the current version of regulation 64 to see if the references are still valid.

No provision for error correction: The Determination does not address what happens if the trustee provides incorrect information (e.g., wrong P1 value). The spouse's remedy is to apply to the court for a correction. There is no automatic recalculated disclosure. The spouse bears the cost of detecting the error.

Fee for information: Regulation 65 of the Family Law (Superannuation) Regulations permits the trustee to charge a reasonable fee for providing information. This Determination does not override that regulation. The trustee may charge a fee for producing the column 4 information. For a complex interest with multiple historical splits, that fee could be substantial. The spouse must weigh the cost of obtaining the information against the size of the superannuation interest.

Interaction with other schemes: The SS Scheme is only one of several NSW public sector schemes. There is also the State Authorities Superannuation Scheme, the Police Superannuation Scheme, and others. Each may have its own determination. Practitioners must not assume this Determination applies to all NSW public sector super. They must identify the exact scheme from the member's payslip or correspondence.

Sunsetting risk: As noted, this 2010 instrument may have been repealed by sunsetting in 2020. The user must verify on the Federal Register of Legislation. If it is no longer in force, the default regulation 64 applies, and the spouse can get all the standard information.

For the trustee (SAS Trustee Corporation): The trustee should maintain a system that identifies each member's current benefit category under the M & F Approval. That means tracking whether the member has made an election under paragraph 20AB(1)(b), 52N(1)(b), or 52N(1)(a) of the NSW Superannuation Act; whether subsection 52IA(1) applies; and whether any default elections under Schedule 23 are deemed. The trustee should also keep a register of all splitting orders, superannuation agreements, and flag lifting agreements served on it, together with all associated payment, release, transfer, and rollover events. For each event, the trustee must record the values and actuarial components as defined in the M & F Approval (Be, Bs, CDe, CDs, TPCIs, V0, V1, TPCIe, P1, P2, LS). When a request under regulation 64 is received from a spouse, the trustee must:

1. Identify the member's interest type using the M & F Approval Part 8 clauses and the member's election history.
2. Determine which row of the table in section 5 applies.
3. Prepare a response that omits all information listed in column 3 and includes all information listed in column 4. For item 1, that means the trustee may provide nothing at all (or could choose to provide information voluntarily, although the Determination says it is "not required" - the trustee could still provide it as a matter of good practice, but the spouse cannot compel it).
4. Ensure that any valuation data (e.g., V0, V1) is calculated in accordance with the applicable clause of the M & F Approval.
5. Provide the response within 28 days (or notify of an extension).
6. Keep a copy of the response and the basis for classification.

For the spouse or their legal representative: Before making a request under regulation 64, try to ascertain the member's interest type. Ask the member if they have ever made an election under Division 3A, 3B, or 3D of the NSW Superannuation Act, or if they are receiving a pension. If the member does not know, request the trustee to disclose the member's election history (the member can request that under regulation 63, and then share it with the spouse). Alternatively, make a broad request that asks the trustee to identify which row of the Determination applies and then provide the corresponding column 4 information. The request should be in writing and should specify that it is made under regulation 64 of the Family Law (Superannuation) Regulations. Be prepared to pay a reasonable fee. If the trustee responds with nothing (because item 1 applies), you must either (a) obtain a court order directing the trustee to provide a valuation; (b) engage an actuary to value the interest using the M & F Approval, which requires knowing the member's salary, age, and service; or (c) rely on the member's own disclosure and settle based on estimates. In practice, (a) or (b) will be necessary for accurate property orders.

For the court: When making a splitting order or approving a superannuation agreement, ensure that the order specifies the information the trustee must provide. If the spouse cannot obtain adequate information under this Determination, the court can make an order under section 90XG of the Family Law Act requiring the trustee to produce further information. The court can also refer the matter to an actuary.

General compliance tip: Do not assume that the 2010 Determination is still in force. Check the Federal Register of Legislation for the current version. Also check that the reference to the M & F Approval is still valid. The M & F Approval has been updated over time; the current Part 8 Schedule 2 may have different clause numbers. If the Determination is outdated, use the default regulation 64 process.

Risk management: The trustee should consider including a disclaimer with the information response, stating that the information is provided as required by the Determination and should not be relied upon without independent verification. The spouse should always verify the calculations, especially the actuarial components, as errors can be costly.