Victorian Consolidated Legislation

County Court Act 1958 - SECT 14

Provision for pensions to County Court judges and their partners

14. Provision for pensions to County Court judges and their partners





(1) The commission of a judge ceases to be in force and the office becomes
vacant-





   (aaa) on the judge being removed from office by the Governor in Council in
        accordance with Part IIIAA of the Constitution Act 1975; or

   (aa) on the abolition of the office of the judge by or under an Act; or



   (a)  in the case of a judge appointed before the commencement of section 8
        of the Courts Amendment Act 1986 who did not make an election under
        section 13A before the commencement of section 7 of the Courts
        Legislation (Judicial Appointments and Other Amendments) Act 2005-upon
        the judge attaining the age of 72 years; or

   (b)  in the case of a judge appointed before the commencement of section 8
        of the Courts Amendment Act 1986 who made an election under section
        13A before the commencement of section 7 of the Courts Legislation
        (Judicial Appointments and Other Amendments) Act 2005-upon the judge
        attaining the age of 70 years; or

   (c)  in the case of a judge appointed on or after the commencement of
        section 8 of the Courts Amendment Act 1986-upon the judge attaining
        the age of 70 years.

(2) Every judge who-









   (a)  has attained-

   (i)  the age of 65 years; or

   (ii) in the case of a judge appointed before the commencement of section 23
        of the Judicial Remuneration Tribunal Act 1995, the age of 60 years;
        or

   (iii) in the case of a judge to whom subsection (5)(ac) applies who was
        appointed as a judge after the commencement of section 23 of the
        Judicial Remuneration Tribunal Act 1995 but who before that
        commencement had service that, by force of that subsection, counts as
        service in the office of judge under this Act, the age of 60 years-
        and has served for not less than 10 years in the office of judge; or

   (b)  has served for not less than 20 years in the office of judge; or



   (c)  having been appointed before attaining the age of 60 years, has become
        afflicted with some permanent incapacity disabling him or her from the
        due execution of the office; or

   (d)  in the case of a judge appointed after attaining the age of 60 years
        but before the commencement of section 23 of the
        Judicial Remuneration Tribunal Act 1995, has become afflicted with
        some permanent incapacity disabling him or her from the due execution
        of the office-

shall upon resignation or upon retirement as aforesaid from his office be
entitled to a pension payable fortnightly at the rate per annum of sixty per
centum of the annual salary-

        (i)    in the case of a chief judge-of the Chief Judge; and

        (ii)   in the case of any other judge-of a judge other than the Chief
               Judge-

for the time being applicable pursuant to section 10.





(2A) A judge who-

   (a)  had attained the age of 60 years when appointed as a judge; and

   (b)  has attained the age of 70 years-

is entitled, upon resignation or retirement from office to a pension payable
fortnightly at the proportion of the rate of the pension that would have been
payable if he or she had served 10 years that is equal to the proportion of 10
years served as a judge.

(2B) A judge who-

   (a)  had attained the age of 60 years when appointed as a judge; and

   (b)  has become afflicted with some permanent incapacity disabling him or
        her from the due execution of his or her office-

is entitled, upon resignation or retirement from office, to a pension payable
fortnightly at the rate of the pension that would have been payable under
subsection (2A) if he or she had served until attaining the age of 70 years.

(3) Upon the death-

   (a)  of any judge under this Act or the County Court Act 1957; or

   (b)  of any person who was formerly a judge under this Act or a judge of
        county courts under the County Court Act 1928-

the partner of the judge shall until death or marriage or until the partner
becomes the domestic partner of another person be entitled to a pension
payable fortnightly at the rate of three-eighths of the annual salary for the
time being payable-

        (i)    in the case of a chief judge or a former chief judge-of the
               Chief Judge; and

        (ii)   in the case of any other judge or former judge-of a judge other
               than the Chief Judge.

Provided that no pension is payable to the partner of any former judge in any
case where that partner married or became the domestic partner of the former
judge after that judge's resignation or retirement, unless in the case of
marriage, the spouse was the domestic partner of the judge immediately prior
to that judge's resignation or retirement.

(3AA) Where there are eligible children of a deceased judge and no pension is
otherwise payable under subsection (2) or (3) to or in respect of that judge
there shall be paid to such person or persons as the Attorney-General directs
a pension in respect of each eligible child at the rate of pension applicable
to the child under subsection (3AB).

(3AB) The pension applicable to each eligible child shall be the amount of the
pension that would be payable to the partner of the judge if the partner was
entitled to a pension under this Part divided by four or the number of
eligible children (whichever is the greater).

(3AC) Eligible child in relation to a judge means a child adopted child or
stepchild of the judge or his or her partner-

   (a)  who is under the age of 16 years; or

   (b)  who-

   (i)  has attained the age of 16 years but is under the age of 25 years; and

   (ii) is receiving full-time education at a school college or university.

(3A) Unless the Governor in Council by Order published in the Government
Gazette otherwise determines in any particular case the right of a judge to a
pension under this section-

   (a)  shall cease upon his accepting appointment to any judicial office in
        or outside Victoria; and

   (ab) shall be diminished by the amount of any pension to which he or she is
        entitled under the law of the Commonwealth or of another State or of
        the Northern Territory or the Australian Capital Territory, being a
        pension for which he or she qualified because of service that, by
        force of subsection (5)(ac) or (5)(ad), was or could have been counted
        as service in the office of judge under this Act; and

   (b)  shall be suspended while-

   (i)  he holds any office or place of profit under the Crown in right of the
        Commonwealth or of a State; or

   (ii) he is engaged in legal practice in any State or Territory of the
        Commonwealth or is employed by any legal practitioner in connexion
        with his practice in any such State or Territory: Provided that this
        subsection does not apply to or in relation to a judge who resigned or
        retired before the 15th day of February, 1970.

(4) All pensions under this section and any payments of lump sums provided by
the commutation of those pensions shall be payable out of the Consolidated
Fund which is hereby appropriated accordingly.



(5) For the purposes of this section-

   (aa) if any judge or associate judge under this Act was immediately prior
        to his or her appointment-

   (i)  an acting judge of the court; or

   (ii) an acting Judge of the Supreme Court- his or her service as acting
        judge shall count as service in the office of judge or associate judge
        of the court (as the case may be);

   (a)  if any judge under this Act is or has been at any time after his
        appointment appointed to be an acting judge of the Supreme Court his
        service as an acting judge of the Supreme Court shall count as service
        in the office of judge under this Act but in the computation of
        pensions under this section the salary he was receiving immediately
        before his resignation retirement or death (as the case may be) shall
        in every case be deemed to be the salary then applicable to the office
        of judge under this Act;

   (ab) if any judge under this Act was immediately prior to his or her
        appointment Director of Public Prosecutions, Chief Crown Prosecutor or
        a Senior Crown Prosecutor, his or her service as Director of Public
        Prosecutions, Chief Crown Prosecutor or Senior Crown Prosecutor shall
        count as service in the office of judge under this Act;

   (ac) if any judge under this Act was immediately prior to his or her
        appointment-

   (i)  a judge of the High Court of Australia or of a court created by the
        Parliament of the Commonwealth, other than the Federal Magistrates
        Court; or

   (ii) a judge of a court of another State or of the Northern Territory or
        the Australian Capital Territory, other than a Magistrates' Court or
        equivalent court- his or her service as such a judge shall count as
        service in the office of judge under this Act;

   (ad) if any judge under this Act was immediately prior to his or her
        appointment-

   (i)  a master or associate judge of the court; or

   (ii) a Master of the Supreme Court or, an Associate Judge of the Supreme
        Court, or a master or an associate judge (however described) of a
        court of another State, the Northern Territory or the Australian
        Capital Territory, other than the Magistrates' Court or equivalent
        court- his or her service as such shall count as service in the office
        of judge under this Act;

   (b)  any reference to a judge under this Act or the County Court Act 1957
        or under the County Court Act 1928 shall not be deemed to include a
        reference to a deputy judge or an acting judge.

(6) For the purposes of subsection (5)(ab), if a judge under this Act who
immediately prior to his or her appointment held the office of Director of
Public Prosecutions, Chief Crown Prosecutor or a Senior Crown Prosecutor (a
relevant office) had also held another one or two of those relevant offices
immediately prior to, or successively prior to, his or her appointment to the
last relevant office held by him or her, then his or her service in that other
relevant office or those other relevant offices counts as service in the last
of the relevant offices held by him or her.

(7) For the purpose of regulation 65 of the Family Law (Superannuation)
Regulations 2001 of the Commonwealth, the Minister on the advice of an actuary
appointed by the Minister may from time to time determine the accrued benefit
multiple.

(8) Subject to subsections (12) and (13), the Minister must comply with
subsections (10) and (11) if-

   (a)  a superannuation agreement which provides for a payment split; or

   (b)  a flag lifting agreement which provides for a payment split; or

   (c)  a splitting order-

is served on the Minister under Part VIIIB or VIIIAB of the
Family Law Act 1975 of the Commonwealth.

(9) Subsections (10) and (11) also apply to-

   (a)  a superannuation agreement which provides for a payment split; or

   (b)  a flag lifting agreement which provides for a payment split; or

   (c)  a splitting order-

which was served on the Minister under Part VIIIB of the Family Law Act 1975
of the Commonwealth before the commencement of section 9 of the Constitution
Amendment (Judicial Pensions) Act 2008 if the non-member spouse's entitlements
in respect of the superannuation interest have not been satisfied as at that
commencement.

(9A) This section also applies to-

   (a)  a superannuation agreement which provides for a payment split; or

   (b)  a flag lifting agreement which provides for a payment split; or

   (c)  a splitting order-

which was served on the Minister under Part VIIIAB of the Commonwealth Family
Law Act 1975 before the commencement of section 21 of the Superannuation
Legislation Amendment Act 2009 if the non-member spouse's entitlements in
respect of the superannuation interest have not been satisfied as at that
commencement.

(10) If the non-member spouse has not satisfied a relevant condition of
release and the member spouse is not receiving a pension under this Act, the
Minister must if the value of the non-member spouse's entitlement in respect
of the superannuation interest at the particular time does not exceed the
value of the member spouse's interest in the Fund-

   (a)  transfer a lump sum amount equal to the value of the non-member
        spouse's entitlement in respect of the superannuation interest at the
        time of the payment to an eligible superannuation plan nominated in
        writing by the non-member spouse within the specified period; or

   (b)  if the non-member spouse fails to nominate in writing an eligible
        superannuation plan within the specified period, transfer a lump sum
        amount equal to the value of the non-member spouse's entitlement in
        respect of the superannuation interest at the time of the payment to
        an eligible rollover fund selected by the Minister.

(11) If the non-member spouse has satisfied a relevant condition of release or
the member spouse is receiving a pension under this Act, the Minister must if
the value of the non-member spouse's entitlement in respect of the
superannuation interest at the particular time does not exceed the value of
the member spouse's interest in the Fund-

   (a)  if so requested in writing by the non-member spouse within the
        specified period, pay the non-member spouse a lump sum amount equal to
        the value of the non-member spouse's entitlement in respect of the
        superannuation interest at the time of the payment; or

   (b)  if so requested in writing by the non-member spouse within the
        specified period, transfer a lump sum amount equal to the value of the
        non-member spouse's entitlement in respect of the superannuation
        interest at the time of the payment to an eligible superannuation plan
        nominated in writing by the non-member spouse; or

   (c)  if no request is received from the non-member spouse within the
        specified period, transfer a lump sum amount equal to the value of the
        non-member spouse's entitlement in respect of the superannuation
        interest at the time of the payment to an eligible rollover fund
        selected by the Minister.





(12) Subsections (10) and (11) do not apply if-

   (a)  the member spouse's superannuation interest is an unsplittable
        interest; or

   (b)  a payment flag is operating in respect of the member spouse's
        superannuation interest; or

   (c)  the non-member spouse has served a waiver notice on the Minister under
        section 90MZA of the Family Law Act 1975 of the Commonwealth in
        respect of the member spouse's superannuation interest; or

   (d)  the member spouse's superannuation interest is a payment that is not a
        splittable payment under Part 2 of the Family Law (Superannuation)
        Regulations 2001 of the Commonwealth.

(13) If the member spouse's superannuation interest is a pension under this
Act due to a disability which is a splittable payment, the Minister may
determine that subsections (10) and (11) do not apply.

(14) If the non-member spouse serves a waiver notice on the Minister under
section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the
member spouse's superannuation interest, the Minister may make a payment to
the non-member spouse not exceeding the value at a particular time of the
non-member spouse's entitlement in respect of the superannuation interest less
any payments previously made by the Minister to the non-member spouse in
accordance with this section.

(15) Despite anything to the contrary in this Act, if under subsection (10),
(11) or (14) an amount is paid by the Minister to a non-member spouse or
transferred by the Minister on behalf of a non-member spouse, the benefit of a
member spouse must be reduced by the Minister in accordance with a methodology
approved by the Minister, on the advice of an actuary appointed by the
Minister.

(16) On the application of an eligible person within the meaning of
section 90MZB(8) of the Family Law Act 1975 of the Commonwealth, the Minister
may provide information additional to the information required to be provided
under section 90MZB of that Act if the Minister considers that the additional
information is necessary to understand the member spouse's benefit
entitlements.

(17) The entitlement of a person to convert or commute a benefit or pension
under this Act is not affected by the making of a payment or transfer under
subsection (10), (11) or (14).

(18) The Minister may charge reasonable fees in respect of-

   (a)  a payment split;

   (b)  a payment flag;

   (c)  flag lifting under a flag lifting agreement that does not provide for
        a payment split;

   (d)  an order under section 90MM of the Family Law Act 1975 of the
        Commonwealth terminating the operation of a payment flag;

   (e)  an application under section 90MZB of the Family Law Act 1975 of the
        Commonwealth for information about a superannuation interest;

   (f)  any other thing done by the Minister in relation to a superannuation
        interest covered by a superannuation agreement, flag lifting agreement
        or splitting order;

   (g)  the provision of information under subsection (16).

(19) Fees charged under subsection (18) must not exceed the maximum levels of
fees fixed by the Minister for the purposes of this section by notice
published in the Government Gazette.

(20) If the Minister charges a fee under subsection (18), the fee is payable-

   (a)  unless paragraph (b) applies, in the case of subsection (18)(a),
        (18)(b), (18)(c), (18)(d) or (18)(f), by the member spouse and the
        non-member spouse in equal parts;

   (b)  if the fee is in respect of a payment split under which the non-member
        spouse is entitled to be paid the whole of the amount of each
        splittable payment that becomes payable, by the non-member spouse;

   (c)  in the case of subsection (18)(e) or (18)(g), by the person who made
        the application.

(21) For the purposes of this section, the Minister may, with such
modifications as are necessary, adopt any specified standards made by Order in
Council under section 92A of the State Superannuation Act 1988 for the
purposes of Part 7A of that Act.