Marriage Guidance Council of Victoria v. Commissioner of Pay-roll Tax (Vic.)

Judges:
McGarvie J

Court:
Supreme Court of Victoria

Judgment date: Judgment handed down 29 June 1990.

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McGarvie J.

I heard this appeal at the same time as the appeal involving the Cairnmillar Institute. Disallowances by the Commissioner of Pay-roll Tax of objections by the Marriage Guidance Council of Victoria (``the Council'') to assessments of pay-roll tax were referred to the Administrative Appeals Tribunal. On 9 November 1988 the Tribunal, constituted by Mr Geoffrey Gibson, decided to affirm the assessments [reported at 88 ATC 2080]. From that decision the Council now appeals to this Court.

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ATC 4771

I have just published my reasons for decision in the appeal involving the Cairnmillar Institute and do not repeat what I there said about the relevant law.

The Council was incorporated in Victoria in 1961 as a company limited by guarantee. It had existed as an unincorporated association since 1948.

The objects stated in its memorandum of association are:

``(1) To enlist through a national system of selection and training the services of men and women qualified for work of reconciliation and education in marriage and family life.

(2) To help parents and others to give children an appreciation of family life and to make available to young men and women before marriage such guidance as may promote right relationships in friendship courtship marriage and parenthood.

(3) To assist those who are about to marry to understand the native responsibilities and rewards of the married state.

(4) To work towards a state of society in which the welfare of the family shall receive primary consideration, and parenthood shall nowhere involve unreasonable social and economic disabilities.

(5) To conduct research and to encourage and assist the conduct of other persons and bodies of research into marital, pre-marital, domestic and sexual relationships.

(6) To provide and encourage and assist the provision by other persons and bodies of marriage guidance and advice and assistance upon marital, pre-marital, domestic and sexual relationships.

(7) To encourage and provide facilities for co-operation between persons interested or concerned in giving marriage guidance and advice and assistance upon marital, pre-marital, domestic and sexual relationships.

(8) To provide and to encourage and assist the provision by any other person or body of education of members of the public as to the nature of a need for a scientific approach to marital, pre-marital, domestic and sexual problems generally.

(9) To investigate the causes of marital, pre-marital, domestic and sexual problems, to conduct, encourage and assist the conduct by other persons and bodies of research for the prevention and solution of such problems and to assist by advice or otherwise any person having such problems.''

I regard other clauses designated as objects in the memorandum of association as being powers.

Any surplus of assets on a winding up is not to be distributed amongst members of the Council but is to be transferred to some institution having similar objects.

As its name implies the main function of the Council, central to its activity, is marriage guidance. The Council provides guidance, or counselling, to couples who contemplate entering marriage, those who wish to maintain a marriage and those who are contemplating leaving or have decided to leave, the relationship. It is approved under the Family Law Act as a marriage counselling organisation. Such approval is given only if the Attorney-General is satisfied that marriage counselling is the whole or a major part of the activity of an organisation. For that approval, and the grant from the Attorney-General that goes with it, to continue, the Council must show that 80 per cent of its work is marriage counselling. The annual report of the Council for 1986-1987 stated that its principal activities during the year were to provide counselling for men and women at various stages of their marital relationships.

The property and affairs of the Council are controlled and managed by a board of management elected at annual general meetings. Apart from the original subscribers, the members of the Council are persons who apply for membership stating approval of the Council's objects and whose applications are accepted by the board or the existing members.

The Council provides its services from land it owns at Kew and Croydon and from other premises at Sunshine, Coburg, Dandenong, Morwell, Ballarat, Bendigo, Shepparton and Traralgon.

At the time to which the evidence referred the marriage guidance counselling was

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ATC 4772

conducted on behalf of the Council by some 18 clinical staff and some 30 to 40 sessional staff.

The former consisted of 3 full-time and the remainder, part-time, staff of the Council, paid full or pro-rata salaries according to the time they worked. They are all marriage counsellors under the Family Law Act 1975, having been appointed court counsellors by the Attorney-General under sec. 37 of that Act. Most have tertiary qualifications in one of the helping professions. A few are not formally qualified but received in-house training years ago and have had considerable practical experience as counsellors. All clinical staff participate in a structured supervisory program and attend regular professional development training.

The sessional staff, whose numbers vary between about 30 and 40, are private practitioners who are engaged to conduct sessions of counselling on the basis of payment for each session conducted. They have similar qualifications and experience to that of members of the clinical staff.

For the financial year 1986-1987, the last covered in the documentary evidence, the income of the Council was stated as $1,014,055. The most significant components were: Australian Government subsidy - $512,000; clients' fees - $416,459; training course fees - $31,532; and mediation income $16,187.

The annual report for 1986-1987 states that in that year the average fee charged for the 19,560 counselling interviews (including mediation) was $22.12. The same rate is paid for mediation as for counselling. When Mr Jobling gave evidence before me the average fee charged per interview by clinical staff or sessional staff for a marriage counselling interview was about $24 to $25. Broadly the charge is based on the client's income so that a person earning $20,000 a year pays $20 and one earning $40,000 pays $40. It appears that fees do not go higher than about $100.

The basic question in this appeal is whether the marriage counselling work of the Council is such that, if other components of the concept were present, the Council would be described as a public benevolent institution. As marriage counselling constitutes the bulk of its work, the Council could be a public benevolent institution only if that work is work of the type done by such an institution.

In my opinion the nature of the marriage counselling provided and the condition and circumstances of those who receive it are such that its marriage counselling work does not entitle the Council to be regarded as a public benevolent institution.

Included in the evidence on which, I was informed, the parties rely in this appeal, are the findings of fact expressed in the reasons for decision of Mr Gibson. I set out some findings which Mr Gibson made. He had referred to evidence of the executive director of the Council, Mr Jobling, that marriage counselling involved a ``psychotherapeutic'' process. Mr Gibson had observed that Mr Jobling said he used the word ``psychotherapy'' in this context to refer to the intervention in personal and marital problems by psychological methods rather than physical methods, that the principal method was the talking out of problems, and that by psychology he referred to the science of human behaviour. Having referred to the lack of uniformity of meanings with which these and other expressions are used, Mr Gibson said (at pp. 2,083-2,084):

``The questions seem to me to be: what does the Council do; what is its purpose; and what are the effects of its activity?

(16) What I understand the staff of the Council to be doing in marriage counselling is trying to talk out the problems associated with marriage with those suffering from the problems. There must be co-operation from the person seeking help. About 20,000 interviews are conducted each year. 40% of these are with couples, 40% with women alone, and 20% with men. About 3,500 cases are dealt with each year, about 11,000 divorces being granted in Victoria each year. The average attendance is five interviews for each case. In about 1,000 cases only one interview is conducted. The current waiting list at the Kew centre is three to four weeks. The staff involved have varying levels of theoretical training and, doubtless, practical ability, although all are said to have specialist marital therapy training. The intervention of the counsellor may result in a movement toward preserving the relationship (reconciliation) or terminating the relationship, or to dealing with the practical or emotional problems arising from the relationship. The executive

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ATC 4773

director said that the staff can recognise conditions requiring the assistance of other professionals. He thought that `psychotherapy' might be a form of `treatment', that it is not necessarily a psychiatric approach or a medical treatment, but that it is an important form of relief to conditions of real distress. It is said that over the past 20 years the Council has moved away from mere `guidance' and more in the direction of `treatment'. Given the constraints imposed by the Family Law Act, and the difficulty in giving any satisfactory resolution to these concepts, it is, for me at least, difficult to quantify any such evolution other than to say, as I think is likely to be the case, that the methods of the Council have improved and that its staff have got better and tend to be more `professional' in their approach with the passage of time.

(17) The Council undertakes these activities because marriage guidance or counselling, as the name of the Council suggests, is an objective of the Council. The importance of marriage counselling to the community is recognised by the provisions of the Family Law Act to which I have referred. It seems to me to be an obvious fact of life that does not require formal proof that matrimonial separation and divorce can lead to stress and distress and make a significant contribution to the total level of human misery, and that any conduct bona fide and properly designed to reduce that misery is likely to be a positive contribution to the community. Something like that reasoning seems to me to run behind the provisions of the Family Law Act dealing with marriage counselling. There is, in any event, evidence pointing to a causal connection between marital breakdown and identifiable psychiatric or physical disorders.

(18) Evidence was led that marital therapy is beneficial. This was disputed. It was conceded to be less than perfect. But I am satisfied on the evidence that the work carried out by the Council in marriage counselling is more likely than not to assist people in the problems that they face in the breakdown of personal relationships such as marriage.

(19) Divorce mediation is regarded as a separate function. Mediators have training in family law. Mediation is designed to help separating couples make their own agreement concerning the future of their children, their finances and their property. It is conceded that the formalisation of such arrangements is left to the officials of the Family Court, or to the lawyers, but the executive director thought that the Council had achieved some successes of its own in this field.

(20) The executive director said that over the whole field of marriage guidance and marriage counselling, the Council provided services in respect of a wide range of marital problems. The staff of the Council accept what individual members of the public say is a `marital problem' for that purpose. The executive director concedes that not all divorce is stressful, although he is disposed to think that the matters leading to divorce are, in most cases, likely to be stressful. He concedes that the Council does not by its work directly alleviate poverty, but contends that his own experience shows that effective marriage counselling may have the effect of alleviating poverty by preserving a marriage, or making its dissolution more orderly. There is also evidence that effective reconciliation may reduce poverty by diminishing the number of sole parent families.''

There is a significant item of evidence before me that was not before Mr Gibson. A survey was conducted in February 1989 in which, in prepared forms, six of the clinical staff provided information relating to each consultation conducted during a one-week period early in 1989. I have found that this evidence usefully conveys an impression of the type of situations presented to clinical staff and the type of counselling given. It confirms my view from the other evidence that the nature of the counselling is well described in one of the current publications of the Council which appears in ex. MJ7 to Mr Jobling's affidavit of 30 June 1988. It states (at p. 199):

``Question: What is counselling?

Answer: Counselling is a word used to describe what happens when a person is helped to grow and make changes in his/her personal life or in relationships in the marriage or family. Often counselling is needed to cope with a crisis or difficulty.

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ATC 4774

Often counselling is needed to reach new goals for personal, couple or family fulfilment.

Question: Who is a counsellor?

Answer: A counsellor is a caring sincere man or woman with the ability and training to listen well and to be understanding, and with the skills to help an individual or couple or a family to resolve their difficulties, and to make positive changes for themselves which bring greater life fulfilment.

Question: Does a counsellor dictate what a person should do?

Answer: No. Each person has the right to be in charge of his/her own life. The counsellor does not judge a person nor dictate what a person should do.''

On the following page of that publication this appears:

``EACH marriage or family is meant to be a place where individuals find happiness, growth and love.

EACH marriage or family will face crises at different times. On many occasions a marriage or a family will be able to cope with those crises. When a marriage or family does successfully cope with crises its members grow in maturity and greater love for each other.

OFTEN partners in marriage or members in a family are not able to handle a particular crisis by themselves.

OFTEN help from outside the marriage or family is needed in order to relieve the pain and give new hope for the future.

EARLY help can prevent a breakdown of relationships and protect a child from emotional distress.

OFTEN counselling help is needed for:

• an engaged couple preparing for marriage;
• a recently married couple adjusting to each other;
• a couple who sense a gap in communication or a lessening of consideration for each other;
• a couple contemplating separation;
• a separated or divorced person;
• a couple experiencing difficulties in their sexual relationship;
• a couple facing social change and changing roles in marriage and the family;
• a couple coping with disappointment and disillusionment;
• a couple in conflict with anger and violence;
• a family who cannot resolve its conflict and tension;
• a couple or family searching for greater fulfilment in relationships.''

That publication is obviously one distributed to inform people what services are available from the Council.

Clearly enough counsellors with the advantage of their education, training, skills and experience are able to give many of those they counsel new insight into themselves, their partners and their situation, and new attitudes towards their relationship and conduct. This, I am satisfied, improves, preserves and makes more satisfactory many marriages.

Mr Jobling said in evidence before me that the counselling given to couples contemplating marriage includes assistance to those who are unsure whether to marry or not. They would not be given advice as to whether or not they should marry. Rather, in discussions with them the counsellor would encourage them to turn their minds to the things which are of importance in assessing their relationship and leave it to them to decide whether they wish to marry. Pre-marital counselling constitutes less than two per cent of the Council's activities.

There is much evidence before me, which I accept, of the undesirable consequences to husband, wife and children, which are frequently the product of strife or other difficulties in marriage or of the breakdown of marriage. There are the direct consequences such as disappointment, frustration, anger, stress, and pain to the feelings and emotions. There are also secondary consequences such as emotional deprivation, loneliness, loss of self-esteem, physical or psychological illness, drug addiction, poverty, and, in the case of children, lack of proper parental relationship, influence and care.

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ATC 4775

The evidence is that about one marriage in four now ends in divorce in Australia. The conditions and attitudes of today must be regarded as presenting particular difficulties to satisfactory and successful marriage. I am satisfied that the work done by the Council in marriage counselling is work of great social value and utility to those who receive its services and to the community generally. Its counselling enables many adults and children to derive or recover benefit from a satisfactory marriage. That, however, is not the issue before me. That issue is whether the Council fits the description of a species of institution on which parliament has conferred the benefit of an exemption from taxation: a public benevolent institution.

There could be no doubt that the emotional stress and pain of an unsatisfactory marriage, a separation or a divorce is typically of a severe order. The counselling work of the Council commonly operates to prevent this stress and pain arising, to reduce or eliminate it or to enable people to reconcile themselves to living with its memory. I consider, however, that the community regards such emotional stress and pain as falling within the ambit of the stress and pain encountered in ordinary human experience associated with such things as failure, deception, loss of status and reputation, and bereavement. Most healthy people of their own volition recover from such hurtful experiences with the passage of time.

I am satisfied that the counselling work of the Council in many cases, by eliminating strife in marriage or preventing marriage breakdown, avoids the undesirable secondary consequences of the type to which I have referred. While entirely commendable socially, this is preventative work and different from the work of a benevolent institution. It is akin to training, education or improvement. With respect I do not agree with the view of Brereton J. of the Supreme Court of New South Wales in his unreported judgment delivered on 27 June 1957 in Federation of N.S.W. Police Citizens Boys Clubs v. Council of the City of Greater Wollongong:

``Put briefly, it is difficult to see why prophylaxis should not be regarded as an activity just as benevolent as therapy. Certainly from the point of view of public benefit, prevention is a great deal better than cure.''

I disagree with that view for reasons similar to those of Mr A.P. Webb in Case L21
(1960) 11 T.B.R.D. 117 at pp. 124-125.

Unlike the work being done by the Cairnmillar Institute in the appeal just decided, it cannot be said of the ordinary run of persons who receive counselling from the Council that they receive psychotherapy or any other treatment to cure a psychological disorder or abnormality. Most of them are normal persons facing difficult situations who need and receive expert counselling and guidance. Typically, that is the service for which the fee of about $24-$25 is charged.

The question to be decided is not one which benefits from prolonged analysis. Essentially the question is whether in the common language of this community the service which the Council provides to those who seek its assistance falls, by and large, within the description of benevolent, used in the relevant sense. In my opinion the bulk of marriage counselling provided by the Council is not to be regarded as benevolent in that sense.

In my opinion the community does not regard those who are, or have been, in marriage, successful or unsuccessful, as a general category of people with an unfortunate disability or condition arousing compassion. The same conclusion is reached if one confines attention to those of that category who seek counselling from an organisation such as the Council. They do not in my opinion fall directly or by analogy within the descriptions given in the cases of categories for which public benevolent institutions may be organised to provide relief.

The appeal will be dismissed.