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Principles as amended, taking into account amendments up to Social Security Amendment (Family Law—Western Australia De Facto Superannuation Splitting) Determination 2022
Administered by: Social Services
Registered 19 Oct 2022
Start Date 08 Oct 2022

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Social Security (Family Law Affected Income Streams) Principles 2022

made under section 1099DD and subsection 1120A(5) of the

Social Security Act 1991

Compilation No. 1

Compilation date:                              8 October 2022

Includes amendments up to:            F2022L01330

Registered:                                         19 October 2022

About this compilation

This compilation

This is a compilation of the Social Security (Family Law Affected Income Streams) Principles 2022 that shows the text of the law as amended and in force on 8 October 2022 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                                                        1

1............ Name............................................................................................................................. 1

2............ Commencement............................................................................................................. 1

3............ Authority....................................................................................................................... 1

4............ Definitions..................................................................................................................... 1

5............ Purpose......................................................................................................................... 3

6............ Schedules...................................................................................................................... 3

Part 2—Income from asset‑test exempt income streams                                                          4

7............ Application of Part........................................................................................................ 4

8............ Income stream that is not a defined benefit income stream............................................ 4

9............ Income stream that is a defined benefit income stream.................................................. 4

Part 3—Income from asset‑tested income streams (long term)                                            5

10.......... Application of Part........................................................................................................ 5

11.......... Income stream that is not a defined benefit income stream............................................ 5

12.......... Income stream that is a defined benefit income stream.................................................. 5

Part 4—Asset value of asset‑tested income streams (other than lifetime)                      6

13.......... Application of Part........................................................................................................ 6

14.......... Income stream that is not a defined benefit income stream............................................ 6

15.......... Income stream that is a defined benefit income stream.................................................. 6

Part 5—Income from asset‑tested income streams (lifetime)                                                 7

16.......... Application of Part........................................................................................................ 7

17.......... Income stream that is a family law affected income stream that is an asset‑tested income stream (lifetime)              7

Part 6—Asset value of asset‑tested income streams (lifetime)                                               8

18.......... Application of Part........................................................................................................ 8

19.......... Income stream that is a family law affected income stream that is an asset‑tested income stream (lifetime)              8

Schedule 1—Matters to which the Secretary must have regard                                          9

Schedule 2—Repeals                                                                                                                                     12

Social Security (Family Law Affected Income Streams) (FaHCSIA) Principles 2011            12

Endnotes                                                                                                                                                               13

Endnote 1—About the endnotes                                                                                                      13

Endnote 2—Abbreviation key                                                                                                          14

Endnote 3—Legislation history                                                                                                       15

Endnote 4—Amendment history                                                                                                     16


Part 1—Preliminary

1  Name

                   This instrument is the Social Security (Family Law Affected Income Streams) Principles 2022.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument.

The day after this instrument is registered.

30 March 2022

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under section 1099DD and subsection 1120A(5) of the Act.

4  Definitions

Note:          A number of expressions used in this instrument are defined in the Act, including the following:

(a)    assessment day;

(b)   asset‑test exempt income stream;

(c)    assettested income stream (long term);

(d)   assettested income stream (lifetime);

(e)    commencement day;

(f)    deductible amount;

(g)   defined benefit income stream;

(h)   family law affected income stream;

(i)    income;

(j)    income stream;

(k)   original family law affected income stream;

(l)    primary FLA income stream;

(m)  purchase amount;

(n)   purchase price;

(o)   relevant number;

(p)   residual capital value;

(q)   reversionary partner;

(r)    secondary FLA income stream;

(s)    superannuation fund;

(t)    threshold day.

                In this instrument:

Act means the Social Security Act 1991.

allocated pension has the meaning given by regulation 3 of the Family Law (Superannuation) Regulations 2001.

asset value has the meaning given by regulation 3A.05 of the SIS Regulations.

base amount allocated to the non‑member spouse has the meaning given by regulation 45 of the Family Law (Superannuation) Regulations 2001.

base amount payment split has the meaning given by subregulation 1.03(1) of the SIS Regulations.

flag lifting agreement means a flag lifting agreement under Part VIIIB or Part VIIIC of the Family Law Act 1975.

market linked pension has the meaning given by regulation 3 of the Family Law (Superannuation) Regulations 2001.

member spouse means a member spouse under Part VIIIB or Part VIIIC of the Family Law Act 1975.

non‑member spouse means a non‑member spouse under Part VIIIB or Part VIIIC of the Family Law Act 1975.

operative time means an operative time under Part VIIIB or Part VIIIC of the Family Law Act 1975.

payment split means a payment split under Part VIIIB or Part VIIIC of the Family Law Act 1975.

percentage payment split has the meaning given by subregulation 1.03(1) of the SIS Regulations.

reversionary beneficiary means a reversionary beneficiary under Part VIIIB or Part VIIIC of the Family Law Act 1975.

RSA means an RSA under Part VIIIB or Part VIIIC of the Family Law Act 1975.

SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994.

splittable payment means a splittable payment under Part VIIIB or Part VIIIC of the Family Law Act 1975.

splitting order means a splitting order under Part VIIIB or Part VIIIC of the Family Law Act 1975.

superannuation agreement means a superannuation agreement under Part VIIIB or Part VIIIC of the Family Law Act 1975.

superannuation interest means a superannuation interest under Part VIIIB or Part VIIIC of the Family Law Act 1975.

trustee means a trustee under Part VIIIB or Part VIIIC of the Family Law Act 1975.

Note   The definitions of assessment day, purchase amount and threshold day adopt formula and calculation methods in sections 1120AA and 1120AB of the Act for the purpose of defining terms as they are used in this instrument. Sections 1120AA and 1120AB of the Act do not apply to family law affected income streams.

5  Purpose

                   This instrument sets out decision‑making principles with which the Secretary must comply in making decisions under the following provisions of the Act:

(a)  paragraph 1099DB(1)(a);

(b)  paragraph 1099DB(1)(b);

(c)  paragraph 1099DC(1)(a);

(d)  paragraph 1099DC(1)(b);

(e)  subsection 1099DCA(1);

(f)  subsection 1120A(2); and

(g)  subsection 1120A(3).

Note    These provisions apply when working out a person’s annual rate of ordinary income, or asset value, of different types of family law affected income stream.

6  Schedules

                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Part 2—Income from asset‑test exempt income streams

  

7  Application of Part

                This Part applies to a family law affected income stream that is an asset‑test exempt income stream.

8  Income stream that is not a defined benefit income stream

         (1)   This section applies if the family law affected income stream is not a defined benefit income stream.

         (2)   For paragraph 1099DD(a) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DB(1)(a) of the Act:

                (a)    the matters mentioned in items 1 to 10 and 14 to 23 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (3)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.

9  Income stream that is a defined benefit income stream

         (1)   This section applies if the family law affected income stream is a defined benefit income stream.

         (2)   For paragraph 1099DD(b) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DB(1)(b) of the Act:

                (a)    the matters mentioned in items 1 to 12 and 14 to 23 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (3)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.

Part 3—Income from asset‑tested income streams (long term)

  

10  Application of Part

                This Part applies to a family law affected income stream that is an asset‑tested income stream (long term).

11  Income stream that is not a defined benefit income stream

         (1)   This section applies if the family law affected income stream is not a defined benefit income stream.

         (2)   For paragraph 1099DD(c) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DC(1)(a) of the Act:

                (a)    the matters mentioned in items 1 to 10 and 13 to 23 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (3)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.

12  Income stream that is a defined benefit income stream

         (1)   This section applies if the family law affected income stream is a defined benefit income stream.

         (2)   For paragraph 1099DD(d) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DC(1)(b) of the Act:

                (a)    the matters mentioned in items 1 to 23 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (3)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.

Part 4—Asset value of asset‑tested income streams (other than lifetime)

  

13  Application of Part

                This Part applies to a family law affected income stream that is an asset‑tested income stream (long term) or an asset‑tested income stream (short term).

14  Income stream that is not a defined benefit income stream

         (1)   This section applies if the family law affected income stream is not a defined benefit income stream.

         (2)   For paragraph 1120A(5)(a) of the Act, the Secretary must have regard to the following matters in making decisions under subsection 1120A(2) of the Act:

                (a)    the matters mentioned in items 1 to 23 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (3)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.

15  Income stream that is a defined benefit income stream

         (1)   This section applies if the family law affected income stream is a defined benefit income stream.

         (2)   For paragraph 1120A(5)(b) of the Act, the Secretary must have regard to the following matters in making decisions under subsection 1120A(3) of the Act:

                (a)    the matters mentioned in items 1 to 23 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (3)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.

Part 5—Income from asset‑tested income streams (lifetime)

  

16  Application of Part

                This Part applies to a family law affected income stream that is an asset‑tested income stream (lifetime).

17  Income stream that is a family law affected income stream that is an asset‑tested income stream (lifetime)

         (1)   For paragraph 1099DD(e) of the Act, the Secretary must             have regard to the following matters in making decisions under subsection 1099DCA(1) of the Act:

                (a)    the matters mentioned in items 1 to 4 and 14 to 23 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (2)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (1) that applies to each payment split.

Part 6—Asset value of asset‑tested income streams (lifetime)

  

18  Application of Part

                This Part applies to a family law affected income stream that is an asset‑tested income stream (lifetime).

19  Income stream that is a family law affected income stream that is an asset‑tested income stream (lifetime)

         (1)   For paragraph 1120A(5)(a) of the Act, the Secretary must have regard to the following matters in making decisions under subsection 1120A(2) of the Act:

                (a)    the matters mentioned in items 1 to 4 and 14 to 25 of Schedule 1;

               (b)    any other matter that the Secretary considers relevant in the circumstances.

         (2)   If payments are being made from the income stream under more than one payment split, the Secretary must have regard to each matter mentioned in subsection (1) that applies to each payment split.


Schedule 1—Matters to which the Secretary must have regard

(paragraphs 8(2)(a), 9(2)(a), 11(2)(a), 12(2)(a), 14(2)(a)
and 15(2)(a), 17(1)(a) and 19(1)(a))

  

Item

Matter to which the Secretary must have regard

1

The commencement day of the original family law affected income stream

2

The operative time for the payment split under the superannuation agreement, flag lifting agreement or court order

3

The date when the first splittable payment became payable in respect of the original family law affected income stream of the member spouse

4

The amount payable to the member spouse from the original family law affected income stream immediately before the operative time for the payment split

5

The purchase price of the original family law affected income stream at its commencement day

6

The relevant number in relation to the original family law affected income stream at its commencement day

7

The term (if any) that applies to the original family law affected income stream at its commencement day

8

The amount of the initial annual payment from the original family law affected income stream at its commencement day

9

The indexation rate (if any) that applies to payments from the original family law affected income stream at its commencement day

10

Details of the primary beneficiary’s reversionary partner (if any) or any reversionary beneficiaries for the original family law affected income stream at its commencement day

11

The deductible amount for the original family law affected income stream at its commencement day

12

Details of the entitlement of each of the member spouse and the non‑member spouse under the payment split for the deductible amount

13

The residual capital value (if any) of the original family law affected income stream at its commencement day

14

The asset value of the original family law affected income stream immediately before the operative time for the payment split

15

The asset value of the original family law affected income stream immediately before the first splittable payment became payable

16

The amount of the payment to the non‑member spouse from the original family law affected income stream immediately before the first splittable payment became payable for the member spouse’s superannuation interest after the operative time for the payment split

17

The amount payable to the member spouse from the primary FLA income stream

18

The amount payable to the non‑member spouse from the secondary FLA income stream

19

If the original family law affected income stream, the primary FLA income stream or the secondary FLA income stream is commuted — the total commuted amount

20

If the payment split is a percentage payment split — the amount of the first splittable payment made from the original family law affected income stream after the operative time for the payment split

21

If the payment split is a percentage payment split — the percentage of the splittable payment that each of the member spouse and non‑member spouse is entitled to be paid under the payment split

22

If the payment split is a base amount payment split:

   (a)  the value of the base amount allocated to the non‑member spouse for the non‑member spouse’s entitlement under the payment split; and

  (b)  the value of the superannuation interest, being:

         (i)   if a splitting order applies to the superannuation interest — the value determined by the court; or

        (ii)   if a superannuation agreement applies to the superannuation interest — the value provided by the trustee of the superannuation fund from which the income stream was acquired or purchased; and

 

   (c)  details of any amounts of income paid from the original family law affected income stream on or after the operative time for the payment split and before the time of the first splittable payment for the payment split; and

 

  (d)  the amount of the first splittable payment from the original family law affected income stream after the operative time for the payment split; and

 

   (e)  the proportion of the first splittable payment paid to each of the member spouse and the non‑member spouse from the original family law affected income stream after the operative time for the payment split; and

   (f)  details of any second and subsequent payments to the non‑member spouse from the original family law affected income stream, after the first splittable payment is made, to give effect to the non‑member spouse’s entitlement under the payment split, including lump sum payments and amounts paid from the secondary FLA income stream; and

 

   (g)  details of any payments to the member spouse from the primary FLA income stream; and

 

  (h)  if the income stream is paid as an allocated pension or a market linked pension:

         (i)   the value of the original family law income stream immediately before the time of the first splittable payment for the payment split; and

        (ii)   the value of the first splittable payment for the payment split to the non‑member spouse from the original family law income stream; and

       (iii)   the value of the primary FLA income stream immediately after the payment split

23

If the non‑member spouse’s entitlement under the payment split is satisfied by the creation of a new interest for the non‑member spouse, or the rollover or transfer to another superannuation fund or RSA of an amount to be held for the benefit of the non‑member spouse:

   (a)  the amount of the first payment to the member spouse from the primary FLA income stream after the new interest is created, or the amount is rolled over or transferred; and

 

  (b)  the amount that would have been payable to the member spouse from the original family law affected income stream if the new interest had not been created, or the amount had not been rolled over or transferred; and

 

   (c)  for an entitlement being paid as an allocated pension — the value of the member spouse’s entitlement from the original family law affected income stream immediately before the new interest was created, or the amount was rolled over or transferred

24

If the member spouse has reached the assessment day in relation to the original family law affected income stream:

 

(a)  the member spouse’s assessment day in relation to the original family law affected income stream; and

(b)  the purchase amount of the original family law affected income stream; and

(c)  the member spouse’s threshold day in relation to the original family law affected income stream.

25

If the member spouse has not reached the assessment day in relation to the original family law affected income stream:

(a)  whether the non‑member spouse has reached their assessment day in relation to the secondary FLA income stream; and

(b)  whether the non‑member spouse has reached their threshold day in relation to the secondary FLA income stream; and

(c)  the purchase amount of the original family law affected income stream.

Schedule 2—Repeals

Social Security (Family Law Affected Income Streams) (FaHCSIA) Principles 2011

1  The whole of the instrument

Repeal the instrument


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

/sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

commenced or to be commenced

 

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Social Security (Family Law Affected Income Streams) Principles 2022

29 Mar 2022 (F2022L00414)

30 Mar 2022 (s 2(1) item 1)

 

Social Security Amendment (Family Law—Western Australia De Facto Superannuation Splitting) Determination 2022

7 Oct 2022 (F2022L01330)

Sch 1: 8 Oct 2022 (s 2(1) item 1)

 

Endnote 4—Amendment history

 

Provision affected

How affected

s 2.............................................

rep LA s 48D

s 4.............................................

am F2022L01330

Schedule 2................................

rep LA s 48C