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

The determination depends on a web of interlocking definitions. A growth phase table is the table in clause 2 of Part 2 of Schedule 1 to the Methods and Factors Approval; a payment phase table is the table in clause 3 of that Part. The Methods and Factors Approval itself is the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, which prescribes the actuarial factors used to value interests under the PSS Scheme. The PSS Scheme is the Public Sector Superannuation Scheme established under section 3 of the Superannuation Act 1990. The Regulations are the Family Law (Superannuation) Regulations 2001, and the Rules are the rules of the PSS Scheme as defined in section 3 of the Superannuation Act 1990, which govern benefit entitlements and member rights.

The key distinction is between a superannuation interest in the growth phase and one in the payment phase. Growth‑phase interests are those where benefits have not yet commenced to be paid (i.e., accumulation or preserved benefits). Payment‑phase interests are where a pension is already in payment. The two tables in sections 5 and 6 treat these phases differently because the information needed to value them under family law differs. For growth‑phase interests, the trustee must provide factor definitions such as ABM (Accumulated Basic Member?), AMC (Accumulated Member Contributions?), APC, ATA (Accumulated Transfer Amount?), ERDA, UDB, FDB, FLS and UFLS - all defined in the growth‑phase table of the Methods and Factors Approval. For payment‑phase interests, the factor P (pension amount) is the core data point.

Section 3(3) contains a critical interpretive rule: a reference to “the relevant date” in the definition of a factor in the Methods and Factors Approval is to be read as if it referred to “the appropriate date”. The “appropriate date” is the date used for valuation under the Regulations (likely the date of application or the date of the order). This prevents a mismatch between the factor definitions and the valuation date required by family‑law proceedings. The effect is that the trustee must supply factor definitions keyed to the correct date, not some other date used in the Approval’s original drafting.

The determination also clarifies that expressions used in both the determination and rule 1.2.1 of the Rules have the same meaning. This ties the determination’s language into the PSS Rules’ existing definitions, ensuring consistency when the trustee applies the Rules to determine eligibility (e.g., whether a member is entitled to take a preserved benefit). The PSS Rules themselves are not reproduced in this determination, so users must consult the Superannuation Act 1990 and the PSS Trust Deed to understand terms like “associate standard pension” or “Reduced Pension under rule 9.2.1”.

The determination primarily affects the trustee of the PSS Scheme. For PSS interests, the trustee is the entity that must answer information requests under regulation 64 of the Family Law (Superannuation) Regulations. The determination modifies what that trustee must and must not provide. In practice, the trustee is the Commonwealth Superannuation Corporation (CSC) as at the time of writing, though the determination itself only refers to the “trustee of the PSS Scheme”. The trustee’s data‑handling and compliance staff must identify which table row an interest falls into, then extract only the specified information. The determination reduces the trustee’s workload compared to the default regulation 64 obligation, because many data fields that would otherwise be required are listed in column 3 (“Information not required to be provided”). For example, for item 1 growth‑phase interests, the trustee need not supply the nine paragraphs of regulation 64(4)(a), (b) and (d) to (i) - which include the member’s name, tax file number, account balance, contribution history, and so on.

The parties to family‑law proceedings (the member spouse and the non‑member spouse) are directly affected. Their lawyers and any expert valuers will receive a narrower set of data than they might expect for other superannuation schemes. The missing information may be obtainable through other mechanisms - for example, by subpoenaing the trustee or by relying on the member’s disclosure obligations - but the determination removes any automatic right to receive it under regulation 64. This increases the cost and delay for a party seeking a complete picture of the PSS interest for valuation, especially if the non‑member spouse is not the member and has limited access to the member’s records.

The court hearing family‑law property proceedings is also affected. The determination limits what the trustee can be ordered to produce under the standard regulation 64 gateway. If the court needs more information to make a splitting order, it may have to use its general powers under section 90XU of the Family Law Act 1975 to compel production, which adds a procedural step.

Members of the PSS Scheme are affected indirectly. The determination does not create new duties for them, but the information‑sharing regime affects the transparency of their interests in divorce proceedings. A member who wants to ensure accurate valuation may need to voluntarily provide additional documentation to the other party or to the court, because the trustee will not supply it automatically. The determination also applies to public‑sector employees covered by the PSS Scheme, but not to other Commonwealth superannuation schemes such as the CSS or PSSap, which have their own separate determinations.

The determination imposes a single main duty on the trustee: for each superannuation interest falling within an item of the growth‑phase table (section 5) or the payment‑phase table (section 6), the trustee must provide the information listed in column 4 of the corresponding item. Simultaneously, the trustee has the right (or immunity) not to provide the information listed in column 3. For paragraph 64(7)(a) of the Regulations, the trustee is “not required to provide” that column 3 information; for paragraph 64(7)(b), the trustee “must provide” the column 4 information. This bifurcation is the core operative mechanism.

The duty applies only when the relevant superannuation interest is one for which a method and factors have been approved under Part 2 of Schedule 1 to the Methods and Factors Approval (section 4). If no factor set exists (e.g., for a very unusual PSS interest), the determination does not apply, and the full regulation 64 obligation presumably continues. The determination does not create any duty on the member spouse to provide information. The right of the requesting party is limited to receiving the column 4 information; they have no right under this determination to receive the column 3 information from the trustee. They may, however, seek that information from the member directly or through other legal processes.

The determination also implicitly imposes a duty on the trustee to apply the correct factor definitions from the Methods and Factors Approval and to substitute “the appropriate date” for “the relevant date” (section 3(3)). This requires the trustee to identify the correct valuation date used in the family‑law proceeding - which may be different from the date the information request was made - and then to supply factor values as at that date. If the trustee fails to do this, the information provided may be unusable for valuation, potentially leading to incorrect split orders.

For payment‑phase interests (section 6), the trustee must, in addition to the factor P, provide details about the pension type, including whether the member has chosen a Reduced Pension under rule 9.2.1 of the Rules, and the annual amount payable for eligible children. These details affect the value of the pension interest and the future‑income streams that may be split. The trustee’s duty to disclose whether the pension is a normal or invalidity associate standard pension or preserved pension is important because invalidity pensions may have different valuation factors and splitting rules.

The determination does not alter the trustee’s broader obligations under the Family Law Act 1975 or the Superannuation Act 1990, such as the duty to comply with splitting orders. It only addresses the initial information‑gathering stage.

The determination itself does not create any penalty provisions. It operates as a set of modifications to regulation 64 of the Family Law (Superannuation) Regulations 2001. Enforcement of the trustee’s obligations under the modified regulation 64 would follow the usual pathways. Under the Family Law Act 1975, a failure by a trustee to provide information as required under the Regulations may constitute a contravention of a court order or a statutory duty, potentially leading to an application for enforcement under section 105 of the Act. The court has powers to make orders for compliance, to award costs, or to issue injunctions. However, because the determination explicitly carves out certain information as not required, the trustee cannot be penalised for failing to provide that column 3 information. Conversely, the trustee can be compelled to provide the column 4 information, and a refusal could lead to enforcement proceedings.

The practical risk of penalty is low. The trustee is a Commonwealth authority, and disputes over information provision are typically resolved by negotiation or clarification rather than by penalty. The court may also issue a notice under section 90XU of the Family Law Act requiring the trustee to produce documents, which would override the determination’s limitations. If the trustee fails to comply with such a notice, it could be in contempt of court.

The determination does not impose any penalties on the member spouse or other parties. There are no monetary penalties, infringement notices, or criminal sanctions contained in the instrument. Any penalty would arise from the underlying Regulations or the Act, not from this determination. The main enforcement risk is that a party who relies on the limited information set may inadvertently agree to an incorrect valuation, leading to a later application to set aside a splitting order. That risk is borne by the parties, not by the trustee.

The determination sits within a hierarchy of instruments. At the top is the Family Law Act 1975, Part VIIIB (Superannuation). That Act empowers the Governor‑General to make regulations in relation to superannuation and family law. The Family Law (Superannuation) Regulations 2001 were made under that power. Regulation 64 of those Regulations sets out the information that a trustee must provide about a superannuation interest when requested by a spouse or the court. For the PSS Scheme, the determination modifies that regulation by specifying that certain information is not required and a substitute set is required. This determination is itself made under the Regulations (specifically, the power to make determinations under regulation 64(7) and (7B)). It does not amend the Regulations directly; it operates as a subordinate instrument that overrides the default obligation for PSS interests.

The determination references the Methods and Factors Approval 2003, an approval made under regulation 40 of the Regulations (or similar provision; the text does not specify). That Approval supplies the actuarial factors used to value interests and the tables of standard interests. The determination’s tables cross‑reference items in the growth‑phase and payment‑phase tables of the Approval. Thus, any amendment to the Approval could affect which information the trustee must provide under this determination, without any change to this instrument.

The determination also ties into the Superannuation Act 1990 and the PSS Rules made under it. Definitions of terms like “preserved benefit”, “associate standard pension”, and “Reduced Pension” come from those Rules. The determination uses those definitions by reference. Any change to the PSS Rules could alter the content of the information the trustee is required to provide. For example, if the Rules are amended to remove the Reduced Pension option, the trustee would no longer have to provide that detail.

The determination interacts with general family‑law practice. The limited information provided under this determination may be sufficient for many PSS valuation scenarios, but if the interest is complex (e.g., multiple factor adjustments, non‑standard pension types), the requesting party may need to invoke the court’s broader information‑gathering powers under section 90XU of the Act or request the member to authorise release of additional data. The determination does not displace those powers.

Finally, the determination has a temporal interaction with the 2024 amendment. The amendments to section 5 apply to information requests already made but not yet fulfilled by the trustee at the time of commencement. This means the amended table (which likely added or subtracted information items) governs pending requests. The determination does not address whether the 2024 amendment is intended to be retrospective for completed requests; it assumes that the trustee has not yet provided the information, so it applies at the performance stage.

The instrument as originally made was the Family Law (Superannuation) (Provision of Information,Public Sector Superannuation Scheme) Determination 2004. It was amended by the Family Law (Superannuation) (Provision of Information , Public Sector Superannuation Scheme) Amendment Determination 2024. The text before us incorporates those amendments, as evidenced by section 7 which deals with the application of the 2024 amendments.

The 2024 amendment determined changed the table in section 5 (growth‑phase interests). We are not told precisely what changed, but section 7 states that the amendments apply to pre‑commencement requests if the trustee has not yet provided the requested information, and to all requests on or after commencement. This suggests that the 2024 amendments added or removed rows in the table, or altered column 3 or column 4 entries for existing items. The practical effect is that for pending information requests, the trustee must now follow the amended table rather than the original one.

No earlier amendment history (between 2004 and 2024) is disclosed in the source. It is possible the determination was unchanged for 20 years, or that earlier amendments were made but are not reflected in this consolidation. The source does not provide a compiled history, so we cannot speculate.

The existence of a 2024 amendment indicates that either the Methods and Factors Approval was updated, or the policy about what information the PSS trustee should provide was refined. Given the time gap, this may reflect a periodic review of standard valuations or changes to the PSS Rules affecting benefit eligibility. The transitional provision in section 7 ensures continuity and avoids the need for re‑requests for still‑pending matters.

The source text contains no reference to any litigation involving this determination. No cases are cited or mentioned. The determination is an administrative instrument likely to be cited in family‑law proceedings, but not itself the subject of judicial decisions. Any litigation would more likely involve the underlying Regulations or the Methods and Factors Approval, or the court’s application of the determination to a specific valuation dispute.

Given the determination’s highly technical nature and its limited scope (only PSS, only information provision under regulation 64), it is unlikely to generate standalone litigation. Disputes over the adequacy of the information provided could arise, but those would be resolved by the court applying the determination’s terms. For example, a party might argue that the trustee failed to supply a required factor definition, or that the factor definition supplied used the wrong date because the trustee ignored section 3(3). The source provides no record of such arguments.

Practitioners should be aware that any challenge to the determination itself would likely be on administrative law grounds (e.g., that it is ultra vires the Regulations or the Act). But no such challenge is recorded in the available text. The determination has evidently operated without significant controversy for two decades.

First, the determination only applies if the superannuation interest is one for which a method and factors have been approved under the Methods and Factors Approval. If the interest is not listed in the growth‑phase or payment‑phase tables of that Approval, the determination does not apply, and the trustee must revert to the full regulation 64 obligation. This means that practitioners cannot assume the modified information set applies to every PSS interest - they must first check that the interest corresponds to an item in the Approval’s tables. The Approval is not reproduced here, but it presumably covers standard benefit types. Non‑standard interests (e.g., non‑member spouse interests that have been created by a splitting order, or partially‑preserved benefits) might fall outside.

Second, the trustee is not required to provide the information in column 3, but that does not mean the information is unobtainable. The determination does not prohibit the trustee from providing it voluntarily, nor does it override the member’s own duty to disclose financial information under rule 12.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. A non‑member spouse can still request the member to provide their account statements or tax documents. But the trustee has no obligation to provide it under the Regulations. The gotcha is that a lawyer depending on the trustee to produce a full “vanilla” information pack may be caught short if they only request under regulation 64 and rely on the default list, not realising this determination carves out PSS.

Third, the “relevant date” substitution in section 3(3) can cause confusion. The Factors in the Methods and Factors Approval are defined with reference to “the relevant date”. That determination reads “relevant date” as “the appropriate date”. The appropriate date is the date used for valuation in the family‑law proceeding, typically the date of application or the date of the order. If the trustee uses a different date (e.g., the date of the request) the factor values may be incorrect, leading to a flawed valuation. The trustee must therefore cross‑reference the court‑specified date.

Fourth, the payment‑phase information requirement includes details about whether an associate standard pension is normal or invalidity related. That distinction matters because invalidity pensions may be partially splittable or have different factor tables. If the trustee omits this classification, the valuation may be inaccurate. The determination requires this specific statement, but errors in classification could prejudice the non‑member spouse.

Fifth, the 2024 amendments apply to pending requests but only if the trustee has not yet provided the information. If the trustee has already provided the information under the pre‑amendment table, the party cannot demand a re‑issue under the new table. This creates a timing risk for applications made shortly before the 2024 amendment; early requests may lock in a less favourable information set.

Sixth, the determination does not contain any dispute‑resolution mechanism or internal review process. A party dissatisfied with the information provided (or not provided) must turn to the court. This increases the cost of correcting deficiencies compared to a scheme where the trustee could voluntarily augment its disclosure.

For the trustee of the PSS Scheme, compliance requires a three‑step process. First, the trustee must identify the superannuation interest and determine whether it falls into any item in the growth‑phase table (section 5) or the payment‑phase table (section 6). The items correspond to the items in the Methods and Factors Approval’s growth‑phase and payment‑phase tables. The trustee will need to consult that Approval to map the interest to the correct item number. If the interest does not correspond to any item, the determination does not apply and the trustee must comply with the full regulation 64 obligation.

Second, the trustee must extract only the information listed in column 4 of the relevant item. For growth‑phase interests, this typically includes the definitions of specific factor acronyms (ABM, AMC, etc.), the member’s date of birth, the first day of membership, and - for items 2 and 3 - details about preserved benefit entitlement and eligibility under rule 8.2.1A or paragraph 8.2.1B(a) of the Rules. The trustee must not provide the information listed in column 3 (e.g., the paragraphs of regulation 64(4) or (4A) for most items). However, the trustee is not prohibited from providing that column 3 information; the determination only says it is not required. If the trustee chooses to provide more information voluntarily, that is not a breach. But doing so might create an expectation of a higher level of disclosure for future requests, and could increase the trustee’s administrative costs.

Third, the trustee must ensure that when supplying factor definitions, the “relevant date” in the Methods and Factors Approval is replaced with the “appropriate date” as used in the family‑law proceeding. This is not just a mechanical substitution; the trustee must determine the correct date from the request or the court order. If the request does not specify the appropriate date, the trustee may need to request clarification or apply a default date (likely the date of the request). To minimise error, the trustee’s procedures should require the date to be recorded and verified before the factor values are computed.

For payment‑phase interests (section 6, item 1), the trustee must provide the factor P, the member’s date of birth, the type of pension payable, details about Reduced Pension election (if the pension is not an associate standard or preserved pension, or an invalidity retirement before age 60), and whether an associate standard or preserved pension is normal or invalidity related. It must also provide the annual amount payable for eligible children. The trustee must determine the pension type from the member’s records and from the Rules.

For pending requests at the time of the 2024 amendment’s commencement, the trustee must apply the amended table if it has not yet provided the requested information. This means the trustee may need to revisit its response for requests in the pipeline and adjust the information set to match the current table. The trustee should maintain a log of requests and their status so that the transitional rule can be applied correctly.

Practitioners on the requesting side should be aware of the determination’s limitations. They should consider whether the information provided under column 4 is sufficient for valuation. If not, they should either seek the member spouse’s voluntary disclosure or consider other legal avenues, such as a court order under section 90XU of the Family Law Act. They should also ensure that the request correctly identifies the interest by reference to the Methods and Factors Approval items, so the trustee can match it to the correct row.