The most common disputes related to superannuation concern who receives a deceased person’s super (see ‘Death benefit disputes’ below); and how super is divided between married couples who are divorcing (see‘Superannuation and family law’ below).
Disputes can be taken to the Superannuation Complaints Tribunal.
Trust deeds provide for benefits to be paid to members and their dependants in different circumstances. These may include resignation, retirement, total and permanent disability, total and temporary disability, and death benefits.
Trustees normally have no discretion regarding the payment of resignation or retirement benefits. Disputes concerning these benefits are usually about the calculation of the amount of the benefit.
Most superannuation benefits are “preserved” and cannot normally be paid to a person until they retire after a certain age (see “Access to benefits”), reach age 65, become permanently incapacitated, permanently depart from Australia, suffer severe financial hardship, or suffer temporary incapacity, or on compassionate grounds.
Benefits contributed before 1986 or 1990 (depending on the fund involved) are generally not preserved. Un-deducted contributions (that is, those on which a tax deduction was not claimed) were generally not preserved until 1 July 1999. Since that date, all contributions are preserved (or, more accurately, restricted).
There may be some unpreserved benefits that can be accessed before retirement and some preserved benefits can be accessed in an emergency. The relevant age for the retirement of a person born before 1 July 1960 is 55 years. This increases to 60 for those born after 30 June 1964, with transitional ages for those born between those dates.
However, if a person has received an income support payment – such as Newstart, a sickness allowance, or a disability support pension (see www.humanservices.gov.au/customer/enablers/income-support-payment-description; or a list of eligible income support payments can be obtained by telephoning Centrelink on 13 23 00) – for a continuous period of 26 weeks and is unable to meet reasonable and immediate family living expenses, and if the fund’s trust deed allows early release, up to $10 000, less applicable tax, a year can be released early. A letter confirming the period and nature of the payment (obtainable by telephoning 13 23 00) must be attached to an application form (obtainable from the trustee of the fund) and forwarded to the trustee of the fund. A person who has been on income support payments for 39 weeks after reaching preservation age can also obtain an early release.
Funds can also be released early for medical treatment, medical transport, modification of a house or car for a disabled person, death, funeral, burial or palliative care expenses, or for mortgage payments to stop a mortgagee from selling the person’s home. The application is made to Centrelink (at www.humanservices.gov.au/customer/services/centrelink/early-release-superannuation).
Some credit providers encourage debtors to access superannuation funds to pay a mortgage, even though the mortgage may not be viable in the longer term, meaning that both the house and the superannuation are eventually lost.
A member of a regulated fund is entitled to certain information to be provided automatically by the fund. This includes:
• an annual member statement showing the amount of the benefit at the start and end of the year (generally 1 July to the next 30 June), the preserved amount and fund contact details, and the value of the benefit on resignation or retirement, including death and disability benefits;
• an annual fund report showing the fund’s financial position and performance; and
• notice of any changes that affect the member, such as any change to the fund rules.
Some superannuation entitlements are protected if a person goes bankrupt, meaning that the creditors cannot take the superannuation savings. The bankrupt retains the benefit of monies in a regulated (and certain other types of) superannuation fund subject to some exceptions.
However, a payment to a superannuation fund may be caught by the relation back or avoidance provisions of the Bankruptcy Act 1966 (Cth), even though that payment gives rise to the interest in the fund, which is protected (see Official Trustee in Bankruptcy v Trevor Newton Small Superannuation Fund Pty Ltd  FCA 1267).