L W S v. T M L T

FCMP 129/2019

[2021] HKFC 204

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCCEDINGS

NO. 129 OF 2019

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D E C I S I O N

(interim maintenance)

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1.  This is the hearing of the application for interim maintenance filed by the Applicant (“Mother”)  on 11 July 2019 for the benefit of a boy, almost 3 years old (“Son”)  born in October 2018 out of wedlock with the Respondent (“Father”).

2.  The Mother initially sought a sum of $66,000 per month. As a result of the Son’s diagnosis of autism in July 2020, the Mother claimed that his medical expenses have increased greatly and leave was granted to amend her application to seek interim maintenance of $102,500 per month.

3.  On 14 October 2019, Deputy Judge A. N. Tse Ching (as she then was)  made an order for interim interim maintenance for the Son payable by the Father in the sum of $13,000 per month.  This amount was increased to $22,000 per month by me pursuant to the Order dated 11 September 2020.

Background

4.  The Mother is now 32 years old.  She used to work as a salesperson and was employed as a director of a trading company, but quit her job soon after becoming pregnant with the Son.  Currently, she takes care of the Son on a full-time basis.  The Mother married her husband Mr Liu (“Mr Liu”)  in 2012 and separated in 2016, though they never got a divorce and are married to this day. 

5.  The Father is around 51 years old and has been a doctor since 1997.  He works as a general medical practitioner and has his own clinic.  He is also married and has two adult children with his wife.

6.  The Mother was the Father’s patient starting from 2007. At the end of 2017, the Mother and the Father developed a romantic and intimate relationship.  She became pregnant with the Son after having sexual intercourse with the Father in around February 2018.

7.  On 10 July 2019, the Mother commenced these proceedings by way of originating summons and sought payments from the Father by way of periodical payment and lump sum payment for the Son’s maintenance under the Guardianship of Minors Ordinance (Cap 13)  (“GMO”).

8.  As the Son was diagnosed as suffering from autism, the Mother claims to place him in a special education program including applied behavior analysis (“ABA”), which is a form of therapy for children with autism.  Since the ABA program caused the Mother to incur substantially increased expenses for the Son, she amended her application to seek interim maintenance for the Son from the Father in the sum of $102,500 per month.

9.  Pursuant to another Order made by me on 11 September 2020, the parties were directed to agree on a single joint expert concerning the issue of autism of the Son.  The relevant medical report of Dr Fanny Lam (“the Report”)  was filed on 16 July 2021, according to which the Son was diagnosed as exhibiting “a low level of severity of Autism Spectrum Disorder”.  It was recommended, inter alia, that:-

(1)  “[the Son]’s condition to be reviewed at the ages of four and six again” since 12% of the children diagnosed the Autism Spectrum Disorder would no longer be autistic in 1 or 2 years later;

(2)  “[the Son] [to receive] speech therapy, as well as applied behavioural analysis (ABA)  therapy …for six months and then the development to be reviewed by the developmental paediatrician”;

(3)  “[the Son] [to study] at the mainstream preschool with onsite preschool rehabilitation services, which allows school-based multidisciplinary training.  He also needs regular speech therapy.”

Legal Principles

10.  The Mother’s application for interim relief is brought under section 13(3)  of the GMO, which provides:-

“(13)(3)  On an application under section 10 the court may, in any case where it adjourns the hearing of the application for more than 7 days, make an interim order, to have effect until such date as may be specified in the order and containing─

(a)  provision for payment by either parent to the other, or to any person given the custody of the minor, of such periodical payments towards the maintenance of the minor as the court thinks reasonable having regard to the means of the parent on whom the requirement is imposed; and

(b)  …

but an interim order under this subsection shall not be made to have effect after the end of the 3 months beginning with the date of the order or of any previous interim order made under this subsection with respect to the application, and shall cease to have effect on the making of a final order or on the dismissal of the application.”

11.  Section 3 of the GMO further provides that, in dealing with matters concerning a child’s custody and upbringing, it is mandatory for the court to regard the best interests of the child as first and paramount consideration.

12.  Ms Lee for the Mother submitted that under section 13(3)(a)  of the GMO, an interim order made by the court would have effect for 3 months from the date of the order only. However, it has been pointed out by HH Judge Chu (as she then was)  in LCTK v TKKP (unrep.)  FCMC 173 of 2009, 25 June 2010 at §8, that there is nothing to stop the court from making a further interim order pursuant to section 13(3)(a)  upon the cessation of the first one.  Further, it appears to be the accepted practice that such period may be automatically extended every 3 months, thus saving the parties’ trouble in coming back to court: IDC v SSA [2019] HKFC 255 at §18.  As Ms Yu for the Father did not dispute Ms Lee’s submission, I accept that is the legal position.

13.  It is also not in dispute that that since the present application is one for interim relief, the court should adopt a broad brush approach, and what matters is the immediate and reasonable financial needs of the child rather than a long-term view: see LCTK v TKKP supra at §9. 

14.  I also accept that the Son is also entitled to be brought up in circumstances which bear some sort of relationship with the Father’s current resources and the Father’s present standard of living: Re P (Child: Financial Provision) [2003] EWCA Civ 837 at §76(iv).

Court’s jurisdiction to order maintenance of the Son against the Father

15.  At birth of the Son, the Father’s name was not registered in the birth certificate and the Son used the Mother’s surname “Lee”.  In November 2018 (about 7 days after the Son’s birth), his surname was changed to “Liu”, following the surname of Mr Liu i.e. the Mother’s husband. 

16.  Ms Yu for the Father submitted that Mr Liu is presumed to be the father of the Son by virtue of his marriage with the Mother under section 5 of the Parent and Child Ordinance (Cap 429)  (“PCO”)  which provides that:

5(1)  a man shall be presumed to be the father of a child

(a)  if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man; or

(b)  …..

(2)  Any presumption under subsection (1)  may be rebutted by proof on a balance of probabilities.

17.  Ms Yu for the Father therefore submitted that in the absence of any declaration of parentage in favour of the Father under section 6 of PCO, the Court’s jurisdiction to order maintenance of the Son against the Father is questionable.  Under GMO, the Court is only empowered to make an order “requiring payment to the applicant by such parent or either of the parents of such periodical sum towards the maintenance of the minor”.  “Parent” is defined as “father or mother” under section 2 of GMO, which should be Mr Liu, by virtue of section 5 of PCO.

18.  With respect, I disagree with Ms Yu’s submission.  In my view, the presumption under section 5(1)  may be rebutted by proof on a balance of probabilities.  If the Father has any doubt as to whether he is the biological father of the Son, he under the advice of his legal teams is always at liberty to seek a direction from the court to file a scientific report on this issue pursuant to section 13 of PCO, which states: 

“…..the court may, either of its own motion or on an application by any party to the proceedings, give a direction—

(a)  for the use of scientific tests showing whether a party to the proceedings is or is not the father or mother of that person…”

19.  Nonetheless, he never makes such request at all the hearings in the past even though when the court made an order for interim interim maintenance for the Son against him in the sum of $13,000 per month on 14 October 2019, and subsequently increased to $22,000 per month on 11 September 2020.  I consider that at least for the purpose of this application, the court is entitled to draw adverse inference against him in respect of this issue and that it is too late for the Father to challenge that he may not be the Son’s biological father in the present application. 

20.  Having said that, the court may on its own motion make such a direction for scientific report even without the Father’s application and I see no reason why the Mother can refuse.  Needless to say, the scientific report must be well prepared and filed before the proceedings are set down for trial by the parties.

Issues in dispute

21.  Putting aside the issue concerning the Court’s jurisdiction, the first issue is the reasonable needs of the Son.  Ms Yu for the Father is very helpful to summarise the parties’ updated positions as follows:-

	Items	Mother  (HK$)	Father  (HK$)
(a)	Rent	20,000[1]	4,000
(b)	Education	46,000 (being expenses for ABA therapy at an organization called ABA Partnership)	By way of reimbursement or direct payment (capped at HK$30,000 per year)
(c)	Food/ Milk Formula	10,000	4,000
(d)	Insurance / Medical / Dental	6,000	By way of reimbursement or direct payment (capped at HK$20,000 per year)
(e)	Clothing / Entertainment	3,000	1,500 (including toys)
(f)	Transportation	1,000	1,000
(g)	Other expenses	2,500 (share of general expenses)	1,000
(h)	Mother’s Carer’s Allowance	14,000	0
	Total	102,500	11,500 + undertakings on reimbursement / direct payment

22.  The second issue is whether the Father should be wholly responsible for the Son’s needs.  For the purpose of interim maintenance, the Father is agreeable to bear 100% of the Son’s share of expenses, except for the item of the Mother’s carer’s allowance.

23.  Thirdly, whether the Mother is entitled to the level of back payments as she requested.

Reasonable needs of the Son

24.  The Mother disclosed an unstamped tenancy agreement for her residence.  and claimed to have rented a one-floor village house at No. 160 Kam Shan Road in Tai Po at HK$20,000 per month, commencing from May 2021.  She asks the Father to bear the Son’s share being half, HK$10,000 per month.

25.  The Father heavily doubts the authenticity and the genuineness of the tenancy agreement as there is no property of “160” but separate units of Nos. 160A and 160B upon site visit.  Online search also reveals that the asking rental for a 700 sq. ft. one-floor unit at a village house along Kam Shan Road is within the range of HK$10,800 to HK$12,000 per month only.  He considered that HK$20,000 per month for such a property is clearly out of the usual range. 

26.  I have some reservations as to whether an unstamped tenancy agreement can be adduced as evidence in court.  More importantly, the Mother fails to explain why such agreement is not stamped properly.  In my view, the Father’s doubt is justified.  Ms Yu further submitted that the unit is occupied by 3 persons including Mr Liu who claims to assist the Mother to look after the Son.  I consider that there is insufficient evidence to assume that Mr Liu is residing with the Mother and the Son in the same unit.  On broad brush approach, I accept HK$6,000 as the Son’s share for the rent.

27.  The Mother’s request for HK$46,000 per month education expense allegedly represents the expenses of the Son’s ABA therapy at an organisation called ABA Partnership.

28.  She has produced no receipt or document to support the actual payment of such expenses to ABA Partnership.  She only produced a single sheet of “invoice” from ABA Partnership dated 3 August 2020, asking her to pay a Centre-based monthly morning plan for September and October 2020 at around HK$46,000 per month.  There is no evidence on actual payment.

29.  The Father doubts whether the Son has indeed participated in this course and for how long.  He therefore prepares to give undertaking of reimbursement or direct payment capped at HK$30,000 per year.

30.  I am of the view that his undertaking save the amount of HK$30,000 per year is reasonable in the circumstances.  Nonetheless, I consider that he shall reimburse all expenses actually paid by the Mother in respect of the Son’s ABA therapy at ABA Partnership and speech therapy capped at HK$46,000 per month as suggested by the Mother.  In the best interest of the Son, he shall receive all kinds of appropriate and suitable treatments for his autism without any delay.  As stated in the Report, parents are recommended to start early intervention as soon as possible.  In view of the Father’s strong income and financial resources, I see no reason why the payment shall be capped at HK$30,000 per year as proposed by him.

31.  I would impose an undertaking on him as follows:

“to pay direct to ABA Partnership or reimburse the Mother within 14 days from the date of receiving the invoice(s)  or the official receipt(s)  of the Son’s ABA therapy issued by ABA Partnership and/or speech therapy issued by a qualified speech therapist (capped at HK$46,000 per month in total)  from the Mother until further order.”

32.  Should he refuse to give such an undertaking, I will no doubt make a fresh and separate order that he shall pay the Mother HK$46,000 per month as expenses of the Son’s ABA therapy and speech therapy on broad brush approach.

33.  I also tend to direct the parties to jointly instruct either Dr Fanny Lam to prepare a supplemental report or a development paediatrician updating the progress of the Son’s autism after his receiving 6 months ABA therapy.  Subject to the recommendations in this progress report, the court may review if the Father’s undertaking is still necessary or can be discharged. Parties shall file a consent summons in this regard, failing agreement, any parties may take out an application for necessary direction.

34.  The Mother claimed that the Son consumes a “special baby formula” HK$500 per carton at 7 cartons per month.  The Father contends that this is not supported by any evidence. On broad brush approach, I accept HK$7,000 for Food and Milk formula.

35.  For medical/ dental expenses, the Father is willing to be responsible for such expenses by way of reimbursement or direct payment, capped at HK$20,000 per year.  I accept his undertaking as follows:

“to reimburse the Mother within 14 days from the date of receiving the receipt(s)  of the Son’s medical/ dental expenses issued by any private or public medical officer(s), dentist(s), clinic(s)  or hospital(s)  (capped at HK$20,000 per year)  from the Mother until further order.”

36.  On broad brush approach, I accept HK$2,000 a month for Clothing/ Entertainment including toys.

37.  As the Mother and the Son live together at a rented unit of a village house, there is no issue of management fees, the Government rent and rates.  The only household expenses would be the costs of utility (water, electricity, gas and internet)  and expenses of household items (e.g. detergent, toilet paper etc.)  but no more. 

38.  I consider that HK$6,000 per month should be sufficient to cover the above items and dividing by two instead of three as argued by the Father, the Son’s share would be HK$3,000 per month as other expenses.

39.  As to the Caregiver’s allowance, the Mother claims HK$14,000 whilst the Father entirely disagree. The Mother said that the Son is not yet 3 years old and she is looking after him on a full-time basis.  Due to the Son’s special needs, he does not accept any alternative caregiver and she is unable to employ a domestic helper to take care of him.  The Report states that the Son is “clingy to parents and has separation anxiety”.  The Mother contended that it is simply not feasible or reasonable to expect her to return to work on a part-time or full-time basis until the Son is older, for example attending primary school.  Ms Lee for the Mother relied on Re P supra and submitted that the Mother should be entitled to a caregiver’s allowance that would allow her not to “be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly.”

40.  As the Mother is only 32 years old and was a salesperson, Ms Yu for the Father submitted that she clearly has the earning capacity in a job market.  Even assuming the Son will attend a half-day kindergarten course, the Mother still could have time spared to work on a part-time basis just to pay for her own personal expenses.

41.  In my view, it is justifiable for the Mother to take care of the Son on a full time basis in view of the Son’s special needs.  However, I disagree that she has to hire a caregiver as she is not supposed to wholly delegate the Son’s care to this caregiver.  I accept that a domestic helper is necessary to alleviate the caring works of the Mother and to assist her to look after the Son for instance preparing his milk and food, washing his clothes, accompanying the Mother to attend the ABA and speech therapy etc.  Indeed, it is quite common in Hong Kong to hire a domestic helper to look after the children.

42.  Further, I understand that the Son will be attending kindergarten or mainstream pre-school as advised in the Report soon and the domestic helper may have to do other household works unrelated to the Son at that time.  On broad brush approach, I consider that the salary of a domestic helper has to be apportioned accordingly and that HK$4,000 per month is reasonable for hiring a domestic helper including some one off expenses like agency fees, insurance charges etc.

43.  For interim purpose and subject to the undertakings of the Father as mentioned above, I assess the reasonable needs of the Son as follows:

Item	Expense (HK$)
Rent	6,000
Education (including ABA therapy)	subject to the Father’s undertaking
Food/ daily goods	7,000
Medical/Dental	subject to the Father’s undertaking
Clothing/ entertainment	2,000
Transportation	1,000
Other expenses	3,000
Domestic helper	4,000
Total	23,000

Father’s ability to pay

44.  For his income, it is not in dispute that:-

(i)  According to his Form E dated 8 November 2019, he earns (i)  J Club Centre: HK$10,000 per month, (ii)  B Medical: HK$40,000 per month, and (iii)  his self-employed practice: HK$2,002,916 ÷ 12 months = HK$166,910 per month; totaling at HK$216,910 per month;

(ii)  His income has been heavily affected by COVID-19 and B Medical did not operate during COVID-19.  He was earning only about (i)  J Club Centre: HK$12,348 per month, and (ii)  his self-employed practice: HK$120,000 to 130,000 per month, totaling at around HK$130,000 per month; and

(iii)  There was a slight recovery in the year 2020.  In November 2020, he was earning about HK$190,000 per month.

45.  Based on the Father’s concession made through his Counsel that he is agreeable to bear 100% of the Son’s share of expenses for the purpose of interim maintenance, I do not think that I need to consider the Mother’s submission of asking the Court to draw adverse inferences against the Father due to his lack of candor. As stated in his Form E showing cash in his bank for about $2 million, I have no doubt to hold that he has the sufficient means and ability to pay the full amount of the interim maintenance for the Son as assessed above.

Back-payment and the HK$ 1.1 million

46.  The Mother has provided the receipt no. I202170R dated May 2021[2] for $30,000 and 2 invoices nos. I2021703 for $11,000 and I2021704 for $50,000 both dated July 2021[3] for the Son’s ABA treatment all issued by Autism Circle (but not ABA Partnership)  as well as an invoice dated 3 August 2020 issued by ABA Partnership for September and October 2020 package in the total sum of $92,700[4].

47.  I have some doubts on the receipt no. I202170R issued by Autism Circle as it has been issued for more than a year and no date of May 2020 is mentioned therein.  For the other invoices (unlike receipt), the Mother fails to prove that she has actually made the payments.  In the circumstances, I refuse to order the Father to reimburse her for these amounts for the purpose of this interim application but these factual disputes can be resolved at the trial of these proceedings when more evidence is adduced.

48.  Regarding the issue of the HK$1.1 million paid by the Father to her, the Mother said that she has provided a detailed breakdown of how the sum was fully spent.  The Father disagreed.  I am of the preliminary view that this sum shall be sufficient for the Son’s expenses for about 2 to 3 years as the Son is just diagnosed autism recently.  In any event, this serious factual dispute cannot be determined in this application and shall only be resolved at the trial.

49.  Taking into account of all relevant circumstances, I refuse to exercise my discretion to order back payment.

Conclusion

50.  I now make an order as follows:

Upon the undertakings of the Father

(i)  to pay direct to ABA Partnership or reimburse the Mother within 14 days from the date of receiving the invoice(s)  or the official receipt(s)  of the Son’s ABA therapy issued by ABA Partnership and/or speech therapy issued by a qualified speech therapist (capped at HK$46,000 per month in total)  from the Mother until further order; and

(ii)  to reimburse the Mother within 14 days from the date of receiving the receipt(s)  of the Son’s medical/ dental expenses issued by any private or public medical officer(s), dentist(s), clinic(s)  or hospital(s)  (capped at HK$20,000 per year)  from the Mother until further order.

i.  The Father do pay the Mother a sum of HK$23,000 per month as interim maintenance for the benefit of the Son commencing from 15 October 2021 and thereafter on the 15^th day of each succeeding months until further order;

ii.  Para 8 of the Order dated 11 September 2020 for interim interim maintenance be discharged;

iii.  The parties do jointly instruct either Dr Fanny Lam to prepare a supplemental report or a development paediatrician updating the progress of the Son’s autism after his receiving 6 months ABA therapy and/or speech therapy, failing agreement, any parties may take out an application for direction;

iv.  Pre-trial review shall be fixed with one hour reserved upon filing of the said report;

v.  The Father do write to the court with copy to the Mother if he will seek direction for a scientific report under section 13 of PCO at least 14 days before the Pre-trial review.

51.  For the question of costs, I consider that a fair costs order shall be costs in the cause of these proceedings. I make this order nisi which shall become absolute unless any of the parties apply to vary by summons.