L W S v. T M L T

FCMP 129/2019

[2025] HKFC 183

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCCEDINGS

NO. 129 OF 2019

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JUDGMENT

(child maintenance, carer’s allowance)

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Introduction

1.This is the trial of the application for maintenance by the Applicant (“Mother”) for the benefit of a boy, LHY (“Son”), born in October 2018, now about aged 7 years, out of wedlock with the Respondent (“Father”).

2.By the Re-Amended Originating Summons filed on 10 July 2019 as amended on 26 September 2024 and re-amended on 21 October 2024, the Mother seeks for the following orders:-

(1)  A lump sum of HK$5,450,982 for the immediate and non-recurring needs of the Son or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the Son before the making of the order to be met, or both; plus the expenses reasonably incurred in maintaining the Son for the period from August 2024 before the making of the order to be met;

(2)  A periodical sum of HK$139,500 towards the maintenance of the Son as the court thinks reasonable having regard to the means of the Father, such sum included an allowance for the carer i.e. the Mother (“Carer’s Allowance”);

Background

3.The Mother was born in September 1988 and is now 37 years old. She was previously employed as a director of a trading company earning about HK$65,000 to HK$80,000[1] a month but ceased employment soon after she learnt she was pregnant with the Son in around March 2018. At present, the Mother claims to take care of the Son on a full-time basis.

4.The Mother married her husband Mr Liu (“Mr Liu”) in 2012 and they separated in 2016. They have not divorced and are legally married to the date of trial.

5.The Father is about 56 years old and has been practising as a doctor since 1997. He is a general medical practitioner and has his own clinic as a sole proprietor business. He is married in 1997 and has two adult children (ie a 25-year-old daughter and a 23-year-old son) with his wife.

6.From 2007, the Mother was the Father’s patient. After the Mother and Mr Liu separated in 2016, she and the Father developed a romantic and intimate relationship in 2017 but have never cohabited. In March 2018, the Mother became pregnant with the Son after having unprotected intercourse with the Father.

7.According to the Mother, the Father asked her to cease employment in light of her pregnancy and she agreed to do so. Since March 2018, the Mother had not been in employment and has been taking care of the Son on a full-time basis since October 2018.

8.In late April 2018, the Mother received a cheque in the sum of HK$1.1 million from the Father (“the HK$1.1 million sum”). It is the Mother’s case that in May 2018, the Father indicated that this sum was for the use of the Mother and the Son. However, the Father contested that this sum was a loan to the Mother which has yet to be repaid. This remains a matter of dispute between the parties. The Mother said that she has exhausted the HK$1.1 million sum entirely.

9.According to the Mother, the Father’s attitude towards her began to rapidly deteriorate in June 2018 when the Father’s wife discovered his extramarital relationship and, as she alleged, he cut contact with her.

10.The Son was diagnosed with G6PD deficiency upon his birth in October 2018.

11.Due to the complete breakdown of the relationship with the Father, the Mother sought help from her estranged husband, Mr Liu, out of desperation to act as the Son’s father. Mr Liu agreed, and the Son’s surname was changed from “Lee” to “Liu” on 1 November 2018. Mr Liu and the Mother are still separated and live separately from one another.

12.After the parties’ failure to settle the Son’s maintenance out of court in early 2019, the Mother commenced these proceedings against the Father by way of Originating Summons on 10 July 2019.

13.On 14 October 2019, HHJ A. N. Tse Ching made an order by consent for the Father to pay interim interim maintenance for the Son in the sum of HK$13,000 per month commencing from 15 October 2019 until further order.

14.On 7 July 2020, the Son was diagnosed as suffering from autism by Dr Catherine Lam. Therefore, the Mother placed the Son in an education programme which provided for Applied Behaviour Analysis therapy (“ABA therapy”), a form of special therapy for children with autism.

15.Due to the additional expenses incurred as a result of ABA therapy, the Mother amended her interim maintenance application. Pursuant to my Order made on 11 September 2020, the interim maintenance was increased to HK$22,000 per month commencing from 15 September 2020 until further order.

16.Further pursuant to my Order dated 24 December 2020, Dr Fanny Lam was appointed as SJE concerning the Son’s autism. Dr Fanny Lam’s report dated 13 July 2021 (“1^st SJE Report”) was filed on 16 July 2021.

17.On 15 October 2021, upon hearing the parties’ arguments and submissions, I varied the previous interim order and ordered the Father to pay a monthly sum of HK$23,000 as interim maintenance for the Son commencing from 15 October 2021 upon the Father’s undertaking to (a) pay directly to ABA Partnership or reimburse the Mother within 14 days from the date of receiving the invoices, or the official receipts of the Son’s ABA therapy issued by ABA Partnership and/or speech therapy (capped at HK$46,000 per month in total) and (b) to reimburse the Mother for medical / dental expenses incurred for the Son (capped at HK$20,000 per year).[2] Parties were also directed 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 the Son received 6 months of ABA therapy and/or speech therapy. It was further directed that PTR would then be fixed upon the filing of the report.

18.Between October 2021 and July 2023, there was no progress in these proceedings. It was not until July 2023 when the Father took the initiative to ask Dr Fanny Lam to prepare the supplemental report that these proceedings moved forward.

19.On 6 November 2023, Dr Fanny Lam’s report dated 2 November 2023 (“2^nd SJE Report”) was filed.

20.Subsequently, by a summons filed on 23 February 2024, the Mother seeks an interim maintenance for the Son in the monthly sum of HK$78,840 commencing from 1 February 2024 and a lump sum of HK$1,623,000 being the reimbursement of the expenses of the ABA therapy for the Son covering the period from October 2022 to January 2024. Pursuant to my Order dated 31 May 2024, this summons was adjourned to be heard together with the trial of the Re-Amended Originating Summons fixed from 13 to 17 January 2025. The parties were further directed to jointly write to Dr Fanny Lam seeking her opinion on the necessity and frequency of the Son’s various therapies and to make recommendations as to the therapies.

21.Dr Fanny Lam’s second supplemental report was filed on 30 December 2024 (“3^rd SJE Report”).

22.In August 2024, the Son commenced Year 1 of his primary school education in an international school.

23.On the first day of the trial, the Mother withdrew her summons filed on 23 February 2024 and leave was granted by me.

Applicable legal principles

24.The Mother’s application for the Son’s maintenance is brought pursuant to Section 10(2) of the Guardianship of Minors Ordinance (Cap. 13) (“GMO”), which provides:-

“(2) The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders—

(a) an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;

(b) an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;”

25.Section 3(1)(a)(i) of the GMO further provides that, in relation to the upbringing of a minor, the court must regard the best interests of the minor as the first and paramount consideration.

26.It is well-settled that the leading English Court of Appeal judgment of Re P (Child: Financial Provision) [2003] 2 FLR 865 provides helpful guidance to the courts in Hong Kong in such applications. In particular, the child is entitled to be brought up in circumstances which are commensurate with the Father’s resources and present standard of living, see §§76-77 of the judgment.

27.As regards the issue of carer’s allowance which forms part of the Mother’s claim, the court may make the periodical payment order for a child to include an allowance for the carer, especially if the carer is required to give up work or is unable to work because she has to look after the child. In LTM v RJT,[3] Cheung JA said:

“4.2 Hong Kong Courts have been adopting the principles propounded in the English decisions on the granting of a carer’s allowance, see, for example, IDC v SSA [2014] 4 HKLRD 220 at [54]-[62]; H v. S [2010] HKFLR 236; WGL v ASB [2013] HKFLR 391 and CKM v SKL [2012] HKFLR 177.

4.3 In Re P (Child: Financial Provision) [2003] 2 FLR 865, Thorpe LJ reviewed and adopted the previous authorities such as Haroutunian v Jennings [1980] 1 FLR 62, A v A (A Minor: Financial Provision) [1994] 1 FLR 657 and J v C (Child: Financial Provision) [1998] 3 FCR 79 at 87, which established the principle that it is not wrong for the Court to augment the periodical payments order for a child to include an allowance for the carer (generally the mother), especially if the carer has to give up work or is unable to work because she has to look after the child.

4.4 Thorpe LJ rejected the notion that the carer’s allowance should be less than the amount that a parent may need to pay a staff to look after the child because, as it was said, to allow more would be seen to be paying maintenance to the former mistress who has no claim in her own right to be maintained. He held :

‘ [43] I cannot agree with that reservation. I believe that a more generous approach to the calculation of the mother’s allowance is not only permissible but also realistic ....’

4.5 Thorpe LJ further held that the welfare of the child is

‘ [44] .... in the generality of cases, a constant influence on the discretionary outcome. I say that because the purpose of the statutory exercise is to ensure for the child of parents who have never married and who have become alienated and combative, support and also protection against adult irresponsibility and selfishness, at least insofar as money and property can achieve those ends.’

4.6 In the Hong Kong context the best interest of the child is, of course, the relevant consideration.

4.7 Thorpe LJ emphasized on the need to adopt a broad common sense approach and discouraged undue bickering over budgets as this type of orders are often subject to subsequent variations. The starting point is to ensure the child has a home to live and his future needs such as education, travel, holidays are met. See [46, 47 and 48]. As for carer’s allowance, he held that :

‘ [49] Thus, in my judgment, the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. On the other hand whatever is provided is there to be spent at the expiration of the year for which it is provided. There can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day. In some cases it may be appropriate for the court to expect the mother to keep relatively detailed accounts of her outgoings and expenditure in the first and then in succeeding years of receipt. Such evidence would obviously be highly relevant to the determination of any application for either upward or downward variation.’ (emphasis added)

4.8 The paying father in Re P had unlimited resources, but, in our view, subject to the recognition of the paying parent’s financial ability in a particular case, many of these principles can still be applied with the necessary moderation to a case like the present where the Father does not have unlimited resources but is a professional earning a good income. As Bodey J observed in Re P :

‘ [80] Since there will always be distinctions of fact and degree as between cases, it is not possible to reduce to words any formula for seeking to ensure that the above distinction is maintained between mother as carer and mother as former wife. There will always be some budgetary needs claimed by a mother which fall clearly within her reasonable needs as the child’s carer and others which fall clearly outside those needs as carer.

[81] There will equally and inevitably be numerous grey areas, where the need asserted is of no direct benefit to the child, but is (or is arguably) of legitimate indirect benefit in helping reasonably to sustain the mother’s physical/emotional welfare. This will be most pronounced when the father is very wealthy and able without difficulty to provide for living costs of no clearly identifiable direct benefit to the child, but which would indirectly promote the mother’s care of the child by allowing her such a lifestyle as not to feel ‘out of place’ in the society of the parents of the child’s friends.’ (emphasis added)”

Mother’s case

28.Ms Lam for the Mother summarised the Mother’s breakdown of the Son’s expenses incurred since his birth up to July 2024 as follows:

Item	Amount incurred (HK$)
Rent	1,204,000
Education expenses (including school fees, miscellaneous expenses, tuition and extracurricular activities)	394,653
Food and daily necessities’ expenses	670,000
Insurance, medical, body check and dental expenses	57,329
Clothing, toys and entertainment	402,000
Transportation expenses	238,000
Other expenses	134,000
Autism and other related therapy expenses	2,615,000
Carer’s allowance	938,000
Total	6,652,982

29.The Mother has received interim maintenance from the Father since 15 October 2019 as follows:

Interim maintenance received	Amount (HK$)
From 15 October 2019 to 15 September 2020	156,000
From 15 October 2020 to 15 September 2021	264,000
From 15 October 2021 to 15 August 2024	782,000
Total	1,202,000

30.Therefore, taking into account the interim maintenance received by the Mother, the outstanding amount is HK$5,450,982, which was later adjusted in the Mother’s closing submissions to HK$5,862,262 after taking into account further expenses incurred in the period until the date of trial, i.e. January 2025.

31.The Mother’s breakdown of the Son’s estimated future monthly expenses are as follows:

Item	Amount per month (HK$)
Rent	23,000
Education expenses (including school fees, miscellaneous expenses, tuition and extracurricular activities)	35,000
Food and daily necessities’ expenses	10,000
Insurance, medical, body check and dental expenses	8,000
Clothing, toys and entertainment	5,000
Transportation expenses	3,000
Other expenses	2,500
Autism and other related therapy expenses	38,000
Carer’s allowance	14,000
Total	138,500

32.As of the date of the Mother’s updated Form E, she had a combined sum of HK$437.80 in four bank accounts. She claims that she has no other assets and has liabilities in excess of HK$6.8 million due to various debts owed to banks, relatives and friends arising out of her inability to provide for the Son. She has no income as she is required to look after the Son on a full-time basis. Given the tender age of the Son and his special needs, the Mother claims not possible for her to seek employment at this moment in time.

Father’s case

33.The Father is a medical doctor earning around HK$218,716 per month and his assets and liabilities are set out in his updated Form E.

34.He said that he cannot afford to pay what the Mother seeks and that her claim is unreasonable in any event. The Father’s monthly expenses are alleged to be over HK$216,386 with the medical/dental/therapy expenses of the Son.

35.He disagreed with all the items of the Son’s expenses, especially the Mother’s claim for autism and other related therapy expenses, namely the fees incurred and to be incurred for ABA therapy at Autism Circle.

36.He expressed serious doubts over whether the Mother has actually spent the amounts on Autism Circle in the past as alleged, and the reasonableness of her decision to enroll the Son in ABA therapy and the charges of Autism Circle.

37.He contested that no provision for carer’s allowance should be made. Even if provision is to be made, the amount claimed by the Mother is inflated.

Witnesses

38.The following witnesses who had filed their respective reports/affirmations and were testified at the trial: -

(1)  Dr Fanny Lam;

(2)  The Mother;

(3)  Mr Joe on behalf of Autism Circle (“Mr Joe”);

(4)  Mr Liu;

(5)  The Father.

The Son’s immediate and non-recurring needs

39.Ms Chong for the Father relying on §26 of the Court of Appeal’s judgment in IDC v SSA[4]argued that the Mother’s lump sum claim relates to “recurring housing, schooling and other daily needs of the Son” cannot be for the purpose of meeting immediate and non-recurring needs of the Son.

40.Ms Lam for the Mother submitted that the said §26 of IDC’s case cannot be applied to the present action because HHJ Bruno Chan in the said case was addressing whether the purchase of a property falls within a child’s “immediate and non-recurring needs”. The applicant in IDC’s case sought a lump sum of HK$32 million for the purchase of property for the child in question and her application was dismissed by the learned judge. The case went to appeal and was heard by the Court of Appeal. The question was ‘can the purchase of a property for the accommodation of the child be described as “immediate and non-recurring needs”?’ The Court of Appeal answered in the negative.

41.I consider that the discussion of the purchase of property in IDC’s case differs substantially from the present action, in which the Mother’s lump sum claim does not involve the purchase of property for the accommodation of the Son. Hence, I reject the argument of Ms Chong.

Whether ABA therapy ought to have been engaged by the Mother

42.Turning to the alleged payments to Autism Circle, it is the greatest amount in the Mother’s lump sum claims for the total sum of HK$2,615,000, which was claimed spending on Autism Circle between August 2020 and July 2024. This is hotly contested by the Father.

43.It is not disputed that the Son was diagnosed with autism by Dr Catherine Lam in July 2020. It seems the Father not challenged that ABA therapy was effective in treating autistic children as advised by Dr Catherine Lam. But he challenged that apart from disputing the alleged payments, Autism Circle was and is not a reasonable choice for providing ABA therapy to the Son.

44.In the best interest of the Son, I have no doubt to accept that ABA therapy ought to have been engaged by the Mother between August 2020 and July 2024, as well as in the future.

Whether Autism Circle was a reasonable choice for providing ABA therapy

45.The fact that I accept ABA therapy ought to have been engaged by the Mother does not mean that Autism Circle was a reasonable choice for providing ABA therapy. These 2 issues are distinct and shall be dealt with separately.

46.According to Mr Joe’s affirmation and his evidence in court, the supervisors (治療總監) of Autism Circle have held BCBA certification from 2019 to the present and Ms Emma Wong, the co-founder and lead therapist of Autism Circle, has been a supervisor and ABA therapist in charge of the Son since 2019. The progress reports issued by Autism Circle in August 2021, December 2021 and May 2022 are undersigned by Ms Emma Wong, who states herself to be a BCBA. Unfortunately, these turn out to be false since Ms Emma Wong was only first certified as a BCBA on 2 July 2022. Thus, I find that Autism Circle had repeatedly and knowingly misrepresented the professional qualifications of Ms Emma Wong before her holding of BCBA certification in July 2022.

47.Dr Fanny Lam testified in court that as there was no professional body regulating ABA therapy in Hong Kong, the parents can base their decisions on BCBA certificate, but it was of course also necessary to consider the therapist’s attitude to the child in question and the relationship between the child and the therapist. In my view, whilst there is no statutory requirement in Hong Kong for an ABA therapist to hold a BCBA certification, such certification is clearly an important qualification which will not only affect the parents’ decisions whether to engage a particular ABA therapist but also affect the scale of the fees charged by this therapist.

48.The Mother said that she did not know that Ms Emma Wong was unqualified at the time. From her evidence in court, while she could not confirm exactly when she became aware that Ms Emma Wong was unqualified, she became aware of such fact only prior to the trial. I cannot accept her evidence in this regard. If she had allegedly paid in total about HK$2 million odd to Autism Circle, it is entirely unreasonable and unbelievable for her not to counter-check the therapist’s qualifications but simply expects the Father to reimburse her for this HK$2 million odd.

49.Ms Lam for the Mother submitted that the Mother had duly compared Autism Circle and another company called Autism Partnership which also provided ABA therapy. Given Autism Partnership’s price quotation, the amount paid to Autism Circle is significantly lower than the amount that would have been paid to Autism Partnership. As mentioned above, I consider that since Ms Emma Wong was not certified as a BCBA before July 2022, it is not unreasonable for Autism Partnership’s price quotation was higher than that of Autism Circle at that time if the therapist of Autism Partnership has the BCBA qualification.

50.The Mother tried to explain during cross-examination that she did not consult the Father about her decision to enrol the Son at Autism Circle because he had blocked her contact at the time. I reject this explanation as the Father is all along legally represented, the Mother should have no difficulty to contact his solicitors.

51.In court, Dr Fanny Lam explained that the Son has definitely improved because each base point acquired in the 3^rd SJE Report is higher than the previous result in the 2^nd SJE Report. In my view, even the Son did get improvement after receiving treatment in Autism Circle, it does not mean that Autism Circle was a reasonable choice for providing ABA therapy to the Son. There is no evidence before me that in Hong Kong, only Autism Circle and Autism Partnership are qualified to provide ABA therapy. Thus, the Mother should first discuss with the Father via his lawyers for the choice of ABA therapist and if failed, she should take out appropriate application in court for determination; otherwise she may have to take the risk not to be reimbursed the fees of ABA therapy from the Father.

52.More importantly, in compliance of my Order made on 15 October 2021, the Mother shall jointly with the Father instruct Dr Fanny Lam to prepare a supplemental report updating the progress of the Son’s autism after the Son received 6 months of ABA therapy and/or speech therapy, namely in about April 2022. Nonetheless, she fails to do so with good reason. She simply chooses to continue to engage Autism Circle up to trial in January 2025.

53.In the circumstances, I conclude that Autism Circle was not a reasonable choice made by the Mother for providing ABA therapy to the Son.

Whether the Mother can prove the Son’s attendance at and the alleged payments to Autism Circle

54.This issue is also one of the most major disputes in this case.

55.The Mother’s case is that the Son has “continuously been receiving treatment from Autism Circle” and hence “payments must have been duly made”. She allegedly purchases a set package of 100 or 60 hours of therapy every month and has to pay the same amount no matter how many hours the Son actually attends in that given month. She also claimed that the Son had received (i) 100 hours of therapy in Autism Circle every month from August 2020 to February 2024 (ie about 25 hours per week); and (ii) 60 hours of therapy every month from March 2024 to the present (ie about 15 hours a week). She has to borrow from her relatives and friends for the payments of Autism Circle in the total sum of around HK$2 million odd.

56.The Father has repeatedly asked the Mother to produce the relevant attendance and payment records: -

i.  Letter of the Father’s solicitors (“CCBH”) dated 10 August 2023 making the request;

ii.  Letter of the Mother’s solicitors (“HCP”) dated 14 August 2023 refusing to accede to the request;

iii.  Letter of CCBH dated 17 August 2023 repeating the request;

iv.  No reply from HCP to the above;

v.  Letter of CCBH dated 23 January 2024 repeating the request;

vi.  No reply from HCP to the above;

vii.  Letter of CCBH dated 6 March 2024 repeating the request;

viii.  Letter of HCP dated 13 March 2024 claiming that “the receipts issued by Autism Circle serve as the sole comprehensive records of payment” and failing to produce any attendance records or progress reports.

57.By letter of CCBH dated 6 March 2024, the Father had also written directly to Autism Circle to request for inter alia the Son’s attendance records and progress reports. Autism Circle did not produce them.

58.The only documents eventually produced by the Mother to prove the Son’s attendance are 5 progress reports prepared in August 2021 to February 2023[5], and the Son’s individual education plan (“IEP”) in July 2023 and February 2024[6]. None of them state the actual hours attended by the Son at Autism Circle.

59.It is not disputed that: -

(1)  From September 2022 to June 2024, the Son attended the kindergarten with school hours from 8:30 am to 11:30 am;

(2)  From August 2024 to the present, the Son has attended school from 8 am to 3:30 or 4:30 pm;

(3)  According to Mr Joe’s affirmation, the Son went to Autism Circle in weekday afternoons and the morning or afternoon sessions on Saturdays;

60.According to the website of Autism Circle as of January 2025, it only offers weekday afternoon sessions from 1pm – 3:30 pm or 4 pm – 6 pm (i.e. totalling a maximum of 4.5 hours) with no Saturday sessions offered.

61.The Mother alleged that the Son had received (i) 100 hours of therapy in Autism Circle every month from August 2020 to February 2024 and (ii) 60 hours of therapy every month from March 2024 to the present. I consider that after the Son’s starting kindergarten, it was extremely difficult, if not impossible, for him to have attended 4 to 5 hours of therapy every Monday to Saturday from September 2022 to February 2024 (ie about 25 hours per week) and 2 to 3 hours of therapy every Monday to Saturday from March 2024 onwards (ie about 15 hours a week), particularly when the Son has apparently also been attending Japanese and art classes.

62.More importantly, the Mother did not ask Ms Emma Wong who appeared to prepare the 5 progress reports and the IEP for the Son to give evidence in court or make an affidavit regarding the Son’s attendance. No explanation is given.

63.In the circumstances, I conclude that even if the Son had attended the ABA therapy in Autism Circle, the Mother must have exaggerated the Son’s attendances of (i) 100 hours of therapy every month from August 2020 to February 2024; and (ii) 60 hours of therapy every month from March 2024 to the present.

64.Concerning the Mother’s payment of Autism Circle fees, the only documents produced by her are monthly “receipts” issued by Autism Circle from August 2020 to December 2024[7] and some deposit slips[8].

65.According to the Mother’s and Mr Joe’s evidence, from August 2020 to the present, the Mother has “prepaid” Autism Circle fees. She would deposit certain money into Autism Circle’s account whenever she felt like it or if there were promotions. Autism Circle would mark down the total amount paid by her and deduct each month’s fees from such “balance”. The invoice and receipt for the coming month would be given to her together at the beginning of the month. They conceded that the monthly “receipts” of Autism Circle produced are not records of funds actually paid by the Mother.

66.During cross-examination, when the Mother testified that Autism Circle kept an internal record of the funds actually paid by her, I then questioned her as to why she did not produce the internal record. She simply answered that she did not possess and did not request for such document.

67.On the other hand, Mr Joe testified that the Mother had requested for such Autism Circle’s internal record and that he had given a hard copy to her before Christmas in around November or December 2024.

68.In the circumstances, as the Mother’s evidence is flatly contradicted by her own witness, Mr Joe, their evidence in this regard must be rejected by the court.

69.As rightly pointed out by Ms Chong for the Father, I find that the “receipts” are riddled with other problems, which further undermine their reliability as evidence of the Mother’s alleged payments: -

i.  The “receipts” from August 2020 to May 2021 do not state the number of hours purchased or the hourly rate;

ii.  The “receipts” are not properly dated and only state the month and year from August 2020 to August 2021[9];

iii.  Starting from July 2021, each receipt requires the customer’s signature. Mr Joe’s evidence was that this was requested by their accountant for auditing purposes. I consider that this explanation is against the common knowledge of auditing. Furthermore, the Mother’s signature can only been seen on “receipts” from July 2021 to July 2023[10], while the client’s signature line was left blank from September 2023 onwards[11]；

iv.  Whilst both the Mother and Mr Joe said that the Mother’s “balance” was always positive, the amount of “已付款項previously [sic] payment” in the receipts always stated to be HK$0;

v.  3 different versions of the receipt dated 2 November 2021 have been produced with no satisfactory explanation from Mr Joe[12];

vi.  Mr Joe was cross-examined as to the “發票編號 INV No.” on each receipt, for instance those from January 2022 to December 2022 which have consecutive numbers[13]. Mr Joe then admitted that a number of the receipts are prepared in advance by his colleague. They are obviously not contemporaneous records.

70.In the circumstances, I refuse to accept that the so-called “receipts” could be regarded as evidence of amounts actually paid by the Mother to Autism Circle.

71.Turning to the Mother’s deposit slips[14], parties have agreed on two tables: Table 1 is the Agreed/Disagreed Table of the Mother’s Alleged Cash Deposit Payments of Autism Circle fees for the total sum of HK$822,720 with unclear dates, while Table 2 is the Agreed Table of the Mother’s Payment of Autism Circle fees for the total sum of HK$958,100 as alleged by her.

72.The Mother tried to explain that some of the payments were made by cash on location at Autism Circle and thus no bank payment slips are available. In my view, her explanation is totally unbelievable. Given that she alleged to pay cash for the greatest amount of $72,800 according to the 2 Tables above, it is entirely incredible for her not to ask for a proper receipt from Autism Circle. The Mother’s explanation of misplacing the payment slips is also rejected since the Father’s lawyers were at all material times chasing her for the payment records or documentary proof.

73.Further, Ms Chong for the Father submitted that:

a.  Comparing the alleged breakdown of fees paid by the Mother against the deposit slips produced, none of the figures stated in the “receipts” match the deposits allegedly made by her. See Table 2;

b.  The vast majority of the documents are cash deposit slips, which do not show the payer or the purpose of the payment;

c.  Aside from 2 FPS transfers from the Mother’s bank account totalling HK$56,000 in April and June 2024, the other transfer slips are from unknown bank accounts (as acknowledged by her) whilst in her 2^nd Answer, she asserted the accounts belong to Mr Liu’s family and friends but provided no proof [15];

d.  The Mother cannot rely on these cash deposit and transfer slips to prove that funds were paid to Autism Circle by her or on her behalf for the Son’s therapy at Autism Circle when there are no receipts issued by Autism Circle that correspond to the deposits or transfers;

e.  The Mother could have produced a stack of cash deposit or transfer slips from other customers of Autism Circle and claimed them as her own expenses. There is simply no way of verifying them because she chose not to produce Autism Circle’s internal record;

f.  Mr Joe admitted in court that he was unable to confirm if the cash deposit slips produced by the Mother are actually funds deposited by her for the Son.

74.According to the Autism Circle’s “receipts”, only cheque, bank transfer and FPS are acceptable. Cash payment is not even stated as one of the acceptable payment methods in the “receipts”.

75.Further, if the Son had attended therapy at Autism Circle every month since August 2020, there was no reason why the Mother failed to produce full set in her 1^st Answer filed in July 2021. In my view, at least, she has failed to make full and frank disclosure in producing the full set of receipt and invoice from August 2020 to July 2021. The court is entitled to draw adverse inference against her.

76.In the circumstances, I accept Ms Chong’s submissions made above and consider that the deposit slips cannot be evidence of the Mother’s payments made to Autism Circle for the Son’s therapy.

77.Indeed, I consider that it is highly suspicious that the Mother colluded with Mr Joe for preparing the “receipts” issued by Autism Circle in view of the Father’s undertaking to reimburse the Mother the sum of the Son’s ABA therapy and/or speech therapy (capped at HK$46,000 per month in total) as recorded in my Order made on 15 October 2021. However, it is unnecessary for me to make such a serious finding against them.

78.I have no doubt to reject all the “receipts” of Autism Circle and the Mother’s deposit slips. The Mother has herself to be blamed for choosing not to produce the Autism Circle’s internal record. Even though the Son may have been receiving some treatments from Autism Circle, I still come to the conclusion the Mother fails to discharge the burden to prove that she had made payment to Autism Circle for the Son’s therapy. Her claim of HK$2,615,000 or any other sum being the amount allegedly spent on Autism Circle between August 2020 and July 2024 or any other period must be rejected.

The Son’s therapy fees going forward

79.As stated in the Father’s open proposal, he is willing to pay the Son’s autism and other therapy expenses by way of direct payment to the relevant centres/bodies. Ms Chong for the Father did not refer me to any legal authority to empower the family court to do so. In my view, the family court has no jurisdiction to order the Father to make direct payment to the relevant centres/bodies. Besides, the Father did not propose any appropriate undertaking to pay directly to the relevant centres/bodies for the Mother’s comments and for my consideration. The court has no such duty to draft the Father’s undertaking. In any event, I shall not assume that he is willing to give the undertaking proposed by the court.

80.Furthermore, in view of the hot dispute between the parties regarding the Father’s undertaking as recorded in my Order dated 15 October 2021 in the past few years, I do not think that his proposed undertaking, if any, will be accepted by me. I consider that it is much more appropriate to include the Son’s autism and other therapy expenses as part of the periodical payment to be made by the Father.

81.Turning to the 3^rd SJE Report, Dr Fanny Lam recommends the Son to receive ABA therapy for 2 hours per week / 8 hours per month. The parties have no dispute.

82.Regarding the choice of ABA therapy, I have to rule out Autism Circle, which cannot be trusted based on the reasons mentioned above.

83.The Mother nominates Autismilee which charges HK$1,800 per hour (8 hours a month) plus HK$2,400 per hour as “supervision fee” from a director (3 hours per month). The Father disagrees since there is no justification for an additional “supervision fee” and it is not part of Dr Fanny Lam’s recommendation.

84.On the other hand, the Father nominates Roots Therapy Hub. The team consists of Yvonne So and Peggy Chi, both of whom have held BCBA for longer than Ms Emma Wong. They offer one-on-one ABA therapy at home, such that the Son and the Mother would save time and money on travelling. The fees are much lower than Autismilee (HK$850 per hour vs HK$1,800 per hour).

85.Balancing the convenience and fees incurred, I am of the view that in the best interest of the Son, Roots Therapy Hub shall be chosen to provide ABA therapy to him.

86.For Speech therapy and Occupation therapy, Dr Fanny Lam recommends 1 hour per week, or 4 hours per month. As confirmed by the Mother during trial that the Son shall continue receiving the same from his current therapist at Brighten, at HK$1,000 odd per 45-minute session. The Father agreed and I also accept that the Son may attend 5 sessions per month.

87.For Social group, Dr Fanny Lam recommends 1 hour per week, or 4 hours per month. I accept the Father’s nomination of SPOT Children’s Therapy Centre since it is one of Dr Fanny Lam’s recommendations. It charges HK$730 for group sessions in Kowloon Bay.

88.For Parent training, Dr Fanny Lam clarified during her oral evidence that parent training does not mean the Mother having to attend other courses. She referred to parent training offered by schools or school counsellors, and the Mother receiving such training from the nurse or the doctor when she brings the Son for regular check-ups. Accordingly, I disallow the fees for parent training.

89.For the avoidance of doubt, I am not making an order that the Mother has to choose Roots Therapy Hub, Brighten and SPOT Children’s Therapy Centre. I shall leave the decisions to her. The reason for my choosing these institutes is only for calculating the reasonable therapy expenses to be incurred by the Mother.

90.To conclude, I order the Father to pay HK$20,000 per month on the Son’s therapy expenses, breakdown as follows: -

ABA therapy	$850 × 8 = $6,800
Speech therapy	$1,000 × 5 = $5,000
Occupation therapy	$1,000 × 5 = $5,000
Social group	$730 × 4 = $2,920
Total:	$19,720 (round up to $20,000)

Other expenses of the Son

91.The Mother’s breakdown of the Son’s other expenses incurred up to July 2024 has been set out in §28 above. Regarding the Son’s other current monthly expenses except his therapy, Ms Chong for the Father summarised the parties’ respective positions as follows: -

Item	Mother’s case (HK$)	Father’s case (HK$)
Rent	23,000	6,000
Education expenses (including school fees, ECAs, school books and stationery, lunches and pocket money and uniform)	35,000	8,000
Food and daily necessities (including utilities)	10,000	4,667
Insurance, medical, body check and dental expenses	8,000	1,000 for medical / dental by way of reimbursement or direct payment 500 for insurance
Clothing, toys and entertainment	5,000	1,500
Transportation	3,000	1,500
Other expenses	2,500	0
Total:	86,500	23,167

Rent

92.It is the Mother’s case that a sum of HK$1,204,000 (ie $144,000 for 2019, $200,000 for 2020, $240,000 for each of 3 years from 2021 to 2023 and $140,000 up to July 2024) has been spent for rental from the date of the Son’s birth up to July 2024. She only produced 2 documents to support this claim, namely (1) a tenancy agreement signed on 28 April 2021 for the period of 24 months from 1 May 2021 to 30 April 2023 with monthly rental of HK$20,000; and (2) a licence agreement signed on 23 August 2024 for the period of 12 months from 30 December 2024 to 30 December 2025 with monthly licence fee of HK$23,000.

93.It is noteworthy that the Mother stated her address in the Originating Summons filed 10 July 2019 to be “香港九龍城城南道68號8樓B室”, in the amended Originating Summons filed 26 September 2024 to be “大埔錦山路159至160號” and in the re-amended Originating Summons filed 21 October 2024 to be “香港新界大埔山道160 A 2樓”. Since these addresses should be the residential addresses of the Mother and the Son at the material times, the Mother should be able to produce the relevant tenancy agreement or licence agreement in respect of these 3 addresses. The Mother simply failed to do so and explain why she cannot.

94.The Father said in his affirmation that the Mother previously allegedly lived on 2/F of a Tai Po village house with a non-existent address. His previous solicitors also sent a letter dated 26 July 2021 to the Mother then solicitors making the similar queries. The Mother did not deny that the tenancy agreement signed on 28 April 2021 was unstamped and also not bother to clarify the query of non-existence address raised by the Father. Further, no rental receipts have ever been produced by the Mother. I therefore refuse to accept the tenancy agreement allegedly signed on 28 April 2021 as proof.

95.Since the burden of proof still lies on the Mother, I am of the view that she fails to produce the supporting document and proof for the claim of rental from the date of the Son’s birth up to 29 December 2024. Hence, her claim for rent of HK$1,204,000 must be refused. However, I accept that in the best interest of the Son, the Mother is needed to move to Kowloon Tong in December 2024 from Tai Po so that the Son will live closer to the kindergarten.

96.The Father’s suggested that HK$6,000 should be the Son’s reasonable share for rent. He did not produce any evidence concerning the rental near the kindergarten in Kowloon Tong. I disagree with his suggestion as there is no base for the same. Relying on the licence agreement signed on 23 August 2024, I accept that the Mother was paying licence fee of HK$23,000 per month from 30 December 2024 up to now. As she and the Son are occupying the premises, the Father is only liable for the share of the Son but not the share of the Mother. I consider that half of the rent for HK$11,500 is appropriate and reasonable, which shall be paid by the Father on monthly basis starting from December 2024.

97.Ms Lam for the Mother argued that the Mother has all along been required to look after the Son on a full-time basis and was therefore not in a position to seek employment to provide income for herself, she should be entitled to claim the full amount of rental expenses. The Father disagrees. I would deal with their arguments in the latter part of this judgment concerning the Mother’s claim of carer’s allowance.

Education expenses

98.It is the Mother’s case that a sum of HK$394,653 has been spent on the Son’s education expenses (including school fees, miscellaneous expenses, tuition and extracurricular activities) up to July 2024. She said that in August 2022, the Son was admitted into K1 of an international kindergarten with a full-time shadow teaching assistant. In August 2023, the Son progressed to K2 with a part-time shadow teacher.

99.Ms Lam for the Mother submitted that the Son is entitled to be brought up in circumstances similar to the Father’s 2 children from his marriage, based on a standard of living that is commensurate with the Father’s income and resources. I agree but the question is whether the Mother is able to prove that she did incur the said sum of HK$394,653 on the Son’s education expenses.

100.In the Mother’s 1^st Form E dated 8 November 2019[16] , there was no school fees and tuition fees when the Son was only about 1 year old but only the expenses of extracurricular activities for HK$1,800. In her 2^nd Form E dated 20 August 2024, she claimed HK$17,000 for school fees, HK$6,000 for tuition fees, HK$1,000 for school books and stationary and HK$3,000 for extracurricular activities. In her affirmation dated 28 August 2024, she set out the breakdown of HK$394,653[17] as follows:

i.  HK$271,405, $45,000 and $29,100 being kindergarten fees;

ii.  HK$6,028, HK$480, HK$30,500 and HK$12,140 being art class, swimming, sing/play class and Japanese class.

101.Ms Lam for the Mother also relied on the 3^rd SJE Report[18] to prove a full-time shadow teaching assistant being engaged in August 2022 and a part-time shadow teacher being engaged in August 2023. The Mother did not produce any documentary proof for the payment to the shadow teaching assistant or shadow teacher.

102.For the Son’s school fees, she only produced the written proof from the present international kindergarten for the payments made by her from August 2021 to May 2024 for the total sum of HK$271,405[19] and other payments for HK$29,100 and HK$45,000[20]. I accept this evidence and the current monthly school fee charged is HK$15,800 with no fees for August 2024, July and August 2025[21].

103.I also accept the other receipts issued by the relevant educational bodies for HK$15,220, HK$6,028 and HK$480[22] as proof but disagree with the quotations of different classes[23] produced by the Mother can be regarded as proof of payment incurred by her.

104.In the circumstances, I only allow her claim for HK$367,233 (being $271,405 + $29,100 + $45,000 + $15,220 + $6,028 + $480) spent on the Son’s education expenses up to July 2024.

105.The Mother further claims HK$35,000 per month being school fees, tuition and extracurricular activities. She said that the present international kindergarten is well-equipped to assist in the development of SEN children. In addition, the Son is happy at there and has settled in to the school environment. I accept her evidence in this regard and consider that it is better to maintain the status quo of the Son to continue to study in the present kindergarten.

106.Since the Father has spent lavishly on his 2 children’s education, both of whom were studying in the very famous universities in the USA according to his 1^st Form E in 2019, the Son ought to be entitled to receive the similar opportunities as his half-siblings. However, I consider that the Mother’s claims for HK$35,000 per month is on high side and in the near future, I cannot see how the Son will study overseas. Hence, I assess that HK$22,000 per month being school fees, tuition and extracurricular activities expenses to be incurred here is reasonable in the circumstances.

Food and daily necessities

107.It is the Mother’s case that a total sum of HK$670,000 has been incurred on food and daily necessities up to July 2024. This figure was calculated by taking an estimation of HK$10,000 per month for 67 months (from January 2019 to July 2024). In cross-examination, the Mother explained that the Son’s allergies to egg and milk and his G6PD deficiency means that she is required to avoid purchasing certain food options which, by extension, means that she has fewer options and is also required to be more selective when buying food for the Son.

108.In the Mother’s 1^st Form E dated 8 November 2019, she claimed food expenses under general expenses for HK$10,000 covering both of herself and the Son. In her 2^nd Form E dated 20 August 2024, she claimed the same amount of HK$10,000 for food but further claimed HK$2,500 for the Son’s lunch under the child’s expenses.

109.The Father suggested that HK$4,667 a month being his share for item. In my view, it is unreasonably low in view of the Father’s living standard.

110.Given that there is no extra claim for dining out by the Son, I accept the Mother’s evidence regarding the Son’s allergies and his G6PD deficiency but consider that the Son’s expenses on food and daily necessities were gradually increasing as he was growing up, especially after the discovery of autism. I only assess and allow a sum of HK$320,000 on food and daily necessities incurred up to July 2024. Starting from August 2024, HK$7,500 is a reasonable amount for the Son’s monthly expenses on this item.

Medical and dental expenses

111.It is the Mother’s claim of HK$56,209 for the Son’s medical and dental expenses up to July 2024 after taking into account the Father’s reimbursement of HK$1,120 for Platform Medical Centre’s fees on 24 June 2023.

112.The Mother has provided receipts from various private hospitals and medical centres at which the Son received treatment when he was young. These included Union Hospital, Paragon Medical Centre and Platform Medical Centre[24]. The Mother had also provided a quotation from Central Smile dental clinic for the Son’s orthodontic fixed appliance therapy and orthodontic expander with partial braces.

113.I accept her evidence and allow her claim of HK$56,209 in full.

114.The Mother further claims HK$8,000 every month under this item for the following reasons:

(I)  The Mother has stated that it is not possible to secure medical insurance for the Son due to his autism diagnosis;

(II)  The Son has frequently been admitted to hospital for treatment; and

(III)  Dr. Fanny Lam made various recommendations which included regular review by dentist, review by dietician due to the Son’s picky diet and review by Developmental Paediatrician.

115.The Father (being a medical doctor) is willing and able to provide medical care to the Son free of charge. However, in the past six years, he has never even spent time with the Son, let alone caring for him when he is unwell. The Father did not respond to the Mother’s request that he spend a night with the Son in hospital. In my view, the Father’s suggestion that he will tend to the Son’s medical needs is fanciful and he cannot be relied upon.

116.As the Mother only incurred HK$56,209 for 67 month up to July 2024, I consider that starting from August 2024, HK$2,500 is a reasonable amount for the Son’s monthly expenses on this item.

Clothing, toys and entertainment expenses

117.It is the Mother’s case that a total sum of HK$402,000 has been incurred on clothing, toys and entertainment for the Son up to July 2024. This figure was calculated by taking an estimation of HK$6,000 per month for 67 months (from January 2019 to July 2024).

118.The Mother claims that the Son quickly grows out of his clothes and thus she is frequently required to purchase new clothes to keep up with his growth. Also, in her first two reports, Dr Fanny Lam had recommended that the Son be exposed “to a wider range of toys especially those that promote pretend and imaginative play to develop his symbolic understanding of objects and cognitive flexibility, which underscores the development of communication in a young child”[25].

119.The Father argued that no evidence to show that the Mother did follow Dr Fanny Lam’s recommendation. He suggested HK$1,500 a month. I think that it is a bit harsh for the Mother to produce the receipts for purchasing clothes, toys and entertainment for the Son.

120.In my view, the Mother’s estimation of HK$6,000 per month is on the high side. In the best interest of the Son, I allow HK$200,000 for 67 month up to July 2024. I consider that starting from August 2024, HK$2,000 is a reasonable amount for the Son’s monthly expenses on this item.

Transportation expenses

121.It is the Mother’s case that a total sum of HK$238,000 has been incurred on transportation up to July 2024. This figure was calculated by taking an estimation of HK$1,500 per month for 12 months from January 2019 to December 2020 and HK$4,000 per month for 55 months from January 2020 to July 2024.

122.The Mother explained that the Son’s behavioural issues has not made it possible for them to take public transportation as these issues result in the Son causing disruption and disturbance to nearby passengers. As a result, she is required to arrange for private transportation, such as Uber or taxi. It is not unreasonable for a single mother (even without the help of a domestic helper) who is required to look after the Son with autism behaviour at a very young age to travel by taxi or Uber from place to place in order to attend ABA therapy on an intensive frequent basis given the busy schedules. Some receipts were produced by her to support her claim under this head.

123.The Father argued that the Son’s “needs” to take taxis or Uber is not substantiated by any medical evidence and that the Mother’s concern that the Son may disturb other passengers is one that any parent with a young child will face. He suggested HK$1,500.

124.In view of the Son’s autism behaviour, I do think that sometimes, the Mother may need to take taxis or Uber but not always since the Son’s situation is improving a lot for the past few years. I also understand that the Mother and the Son have changed their home address from Taipo to Kowloon, meaning that they live much closer to kindergarten. I also have to bear in mind that the Father is driving a luxurious car purchase price of HK$619,000[26]. Hence, I allow HK$160,000 for 67 month up to July 2024. I consider that starting from August 2024, HK$2,000 is a reasonable amount for the Son’s monthly expenses on this item.

Other expenses

125.It is the Mother’s case that a total sum of HK$134,000 has been incurred on other expenses up to July 2024. This figure was calculated by taking an estimation of HK$2,000 per month for 67 months (from January 2019 to July 2024). The Mother has not included a claim for utilities and not taken into account other miscellaneous expenses that have arisen out of the Son’s lifestyle. Now, she claims HK$2,500 per month under this head.

126.The Mother indeed has not provided the breakdown or description of what such item covers with supporting documents. I understand the difficulty for her to produce such supporting documents and do think that there must be some other expenses incurred for the Son. I therefore allow HK$67,000 for 67 month up to July 2024. I consider that starting from August 2024, HK$1,500 is a reasonable amount for the Son’s monthly expenses on this item.

Carer’s allowance

127.The Mother claims a total sum of HK$938,000 for carer’s allowance up to July 2024. This figure was calculated by virtue of the Mother adopting a figure of HK$14,000 per month in her affirmation for 67 months (from January 2019 to July 2024).

128.Ms Lam for the Mother further cited the judgment of Judge Bruno Chan in the case of IDC v SSA who said the following regarding the item of carer’s allowance:

“The evidence before the court is that the Mother used to earn between HK$20,000 – $30,000 per month before she gave birth to Z. While she is certainly not entitled in law to claim her carer’s allowance on the same basis of a wife for ancillary relief, it would not be inappropriate in my view instead to use her former average income as the basis for assessing her allowance as the primary carer, which as Thorpe LJ said in Re P above, and using his words here, may be checked but not diminished by the absence of any direct claim in law, and that in order to discharge this responsibility as the primary carer of Z, she must have a budget that reflects her position and the position of the Father both social and financial, as she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the Father chooses to live lavishly.”[27] (emphasis added)

129.The learned judge in that case allowed carer’s allowance in the sum of HK$25,000[28] and the Court of Appeal did not disturb on appeal.

130.On the other hand, Ms Chong for the Father contended that no carer’s allowance ought to be allowed. The Mother claims not working since 2018 after she got pregnant. Prior to 2018, she was a salaried director and worked in sales of tourism packages in Macau and Zhuhai, earning HK$65,000 to HK$80,000 per month. According to her previous solicitors’ letter dated 10 June 2020, she claimed to have earned HK$89,000 on average since 2016. The Son is now in school from 8 am to 3:30 pm or 4:30 pm on weekdays. There is thus no reason why she would not be able to return to the workforce and earn a good income, especially when she is still very young at 37 years old.

131.In LTM v RJT,[29] the Court of Appeal dismissed the father’s appeal and Cheung JA said:

“5.5 In our view the Judge is correct in her decision to give carer’s allowance to the Mother. We would like to point out there is no backdating of the order as such by the Judge. All that she did is to order the payment to commence from the date of the application to the date of her order and to limit the future carer’s allowance to a term of two years. Inevitably there will be a time gap between lodging of the application and the hearing and the need for carer’s allowance clearly had arisen from the time of the application.”

132.In the present case, the Mother had and has the assistance of her husband Mr Liu, who has been caring for the Son regularly since the Son’s birth: -

i.  Mr Liu saw the Son around 3-4 times a week and would assist in picking up the Son from school, take him to therapy or home, and play with him at home. He also confirmed that he would be willing to continue doing so;

ii.  Mr. Liu had accompanied the Son every time to see Dr Catherine Lam and Dr Fanny Lam. Mr Liu was able to provide information about the daily behaviour of the Son to the doctors. The Son was said by Dr Catherine Lam to be attached to Mr. Liu. Mr Liu has all along assisted the Mother with childcare;

iii.  As confirmed during his examination-in-chief, Mr Liu has not worked since 2019. During cross-examination, he said that he may not be able to pick up his previous work if he needed to take care of the Son and could not go to Japan.

133.First, I have to bear in mind that the court shall not provide maintenance to the Mother in her status as a former lover of or having intimate relationship with the Father, for which she is not entitled to by law. Therefore, as discussed above, I only allow half of the rental expenses in the sum of HK$11,500 representing the Son’s share rather than the Mother’s share. If I allow the rental of HK$23,000 in full and also allow the carer’s allowance at the same time, the Mother is likely to get the double benefit. Secondly, even if carer’s allowance is given, the court shall be very reluctant to back date this claim on the ground that it is indeed not an actual payment or expenses incurred in the past, unlike the Mother’s claim for food, education etc.

134.Every case has its own facts which must be very sensitive, for instance, the history of the parties’ co-habitation and how long etc. The court has to carefully exercise its discretion whether or not to grant carer’s allowance, if yes, how much and when to commence. In the present case, the parties never co-habit but I accept that there is a tremendous burden on the Mother as a single mother of an autistic child whilst the Father never request for any access to the Son nor assist the Mother in any way to look after the Son. Mr Liu has no legal duty to take care of, not to say financially support, the Son although I believe that he will continue to do so in view of their close relationship and his agreement for the Son to use his surname “Liu”. In my view, the carer’s allowance can surely relieve the Mother from financial anxiety to some extent so as to enable her to focus on taking good care of the Son which is definitely in the best interest of the Son. On the other hand, I do think that when the Son is in school, she shall be able to find at least some part-time job in the industry of tourism, which she shall be familiar with, due to her extensive experience and substantial earnings in this field in the past.

135.In any event, the Mother is still young and needed to return to the workforce as soon as possible, especially the Son’s situation is kept improving. Dr Fanny Lam confirmed during her oral evidence that the Son has normal IQ and physical health and does not need to attend a lot of check-ups. I believe that the Son is able to grow up as other normal children. Thus, I exercise my discretion to allow the carer’s allowance from the date of the application in July 2019 and a further term of four years from August 2024. As to the amount, I consider HK$12,000 is reasonable after taking into account of all the relevant circumstances. For the sake of convenience, the rough calculation of the carer’s allowance from the date of the application in July 2019 to 14 August 2024 is about 5 years and 1 month for the sum of HK$732,000 (ie $12,000 × 61 months). The Father has to pay HK$12,000 as carer’s allowance from 15 August 2024 until 14 August 2028.

The sum of HK$1.1 million given by Father to Mother in April 2018

136.There is no dispute that the Father paid HK$1.1 million to the Mother in April 2018. The only dispute is whether it was a loan from him or provision to her to cover expenses during her pregnancy.

137.The Mother’s position is that the HK$1.1 million sum provided by the Father to the Mother in April 2018 was for the Mother’s use during her pregnancy (坐月) and not a loan to be repaid.

138.The Father alleges that the HK$1.1 million sum is a loan, the evidence he provides is in the form of the Snapchat messages which the Mother denies took place.

139.I accept the submission of Ms Lam for the Mother that the Father’s evidence in the form of the Snapchat messages is weak and unconvincing, for instance:

(a)  The name of the opposite party to which the Father appears to be messaging is simply indicated as “LEE”. There is no further information to indicate that he/she is in fact the Mother.

(b)  There are no dates on any of the messages so it is impossible to determine when the messages were sent.

(c)  The messages provided are disorganised and fragmented. Not only is there is no discernible order, it is also clearly not a complete set of messages between the two parties, meaning it is not a full record of the parties’ entire conversation. There are obvious dangers when relying on such evidence as the court is ultimately tied down to the representation of the situation as presented by the Father as opposed to viewing it objectively without interference.

(d)  When a colour copy of the Snapchat messages was requested, the documents provided by the Father were not consistent with the original documents in the trial bundle. In some of the colour versions, there are obvious differences in the top and bottom of the respective pages.

140.However, the court shall consider the context of the relationship between the Mother and Father in April 2018 when determining the nature of the HK$1.1 million sum, particularly the fact that they were still in an intimate relationship at the time and that the Son born in October 2018, ie just about 4 months after the payment. In my view, such payment cannot be a loan but was made by the Father to the Mother for two purposes namely, (1) the Mother’s use before her delivery and during her pregnancy (坐月) and (2) for the Son’s use after his birth. For the Mother’s use, it must be a gift rather than a loan. For the Son’s use, I consider that it has to be deducted from the lump sum ordered to be paid by the Father; otherwise the Mother will have received double benefit or windfall. Of course, no evidence is given by the parties concerning the apportionment. I have to use some common sense and assess half of the HK$1.1 million sum ie HK$550,000 for the Son’s use which shall be deducted from the lump sum order to be made below.

The Father’s means

141.The Father claims a monthly income of HK$218,716 and a monthly expenses of HK$216,386 though these figures are all disputed by the Mother.

142.Ms Lam for the Mother submitted that according to the Father’s financial statement for the year ended 31 March 2024, his consultation fee income was HK$3,390,000 but his profit was HK$2,011,761 due to expenses exceeding HK$1.3 million. For instance, Ms Lam argued that the Father claim of HK$194,000 in a year for “Cosmetic and clothing” is an excessively high amount for a doctor to spend on this kind of expenses. The Father claimed HK$431,000 for “Depreciation” and under cross-examination, he was unable to explain the nature of this expense. The Mother also considers his claim of HK$165,173 a year as his car-related expenses to be grossly excessive, especially when the Father separately claimed HK$16,000 for travelling as his personal expenses. I consider that there must be some double counting of these expenses. In short, the Father’s true income is in fact much higher than the documents appear to suggest.

143.Concerning the Father’s monthly mortgage instalments of HK$58,371, the Mother submitted that the remortgage for around HK$4 to $5 million is a façade and that the Father took out a remortgage for the purpose of lengthening the period of mortgage instalments in order to increase his expenses when, in reality, the mortgage could have been repaid long ago. In my view, the Father has got substantial profit from his clinic business and it is entirely unnecessary for him to remortgage his apartment for HK$4 to $5 million. In other words, his monthly mortgage instalments of HK$58,371 is not necessary.

144.As regard the Father’s claim of HK$66,963 per month for his daughter’s school fees in Australia, the Mother said and I accept that the Father’s calculation is incorrect based on the University’s Student Financial Statement figure for a six-month period and that the monthly expense should only be HK$36,109.

145.Relying on the principles laid down in KEWS v NCHC [2013] 16 HKCFAR 1 and JBGMK v JPLY [2013] HKFC 60, the Mother further contended that the financial assistance provided by the Father’s father in the sum of HK$7,100,000 is substantial and the nature of their father-son relationship strongly suggests that such financial assistance is likely to continue in the foreseeable future, it is accordingly submitted that the financial assistance received by the Father from his father ought to be taken into account by the court.

146.In my view, even if the principles laid down in KEWS’s case is applicable in the proceedings commenced under the GMO, this court shall not and is almost impossible to go through in detail or forensically analyse each and every items of the parties’ income and expenses in dispute. The overall impression to me after perusing all the relevant documents, evidence and considering the parties’ submissions, I am of the view that the Father not only has a very high earning capacity but also has a very strong family background backed up by his parents. He is residing in a decent apartment with very comfortable standard of living and driving a luxurious car. He also has very high expectation to his 2 children who have the opportunity to study in the very famous universities aboard. According to the Father’s 2 Form Es, his bank balance in 2019 was HK$2.198 million while that in 2024 was HK$1.384 million. I do not see how and why on one hand, he has received around HK$4 to $5 million by remortgaging his home and on the other hand, his bank balance was significantly dropped from HK$2.198 million in 2019 to HK$1.384 million in 2024. More importantly, the Father honestly revealed during cross-examination that he has a practice of transferring money to his wife and children’s bank accounts from time to time. Nonetheless, he fails to disclose the details of these transfers. Hence, I am entitled to draw adverse inference on the Father’s ability to pay and conclude that he is able to pay the amount ordered by the court.

The Mother’s means

147.Ms Chong for the Father also relied on the principles in KEWS third party assistance and submitted that what has been demonstrated over the past 5 odd years is that the Mother has a seemingly unlimited source of cash to spend and that the Father should not be expected to solely take up the Son’s expenses.

148.As to the alleged debts of totalling over HK$6.8 million in the Mother’s Form E, I will not make specific ruling on each and every items of the alleged debts. In short, I tend to agree that most of them are debts due to the Mother’s relatives and Mr Liu. Since there is no evidence that any attempt has been made by any alleged lender to chase the Mother for repayment, they are simply “soft loans”.

149.On the other hand, I consider the fact that the Mother satisfied the means requirement of the Legal Aid Department must be very strong proof of her financial situation. As discussed above, since the Father has to pay carer’s allowance for HK$12,000 per month, it seems that it is contradictory for this court to order the Mother to pay a share of the Son’s expenses. Although I have said that the Mother has to find a part-time job, I think that this income is just sufficient to pay off part of her own personal expenses including her share of rent[30], but not enough to pay any part of the Son’s expenses. In the circumstances, I am of the view that due to the great disparity of the parties’ earning capacities, the Father shall be solely responsible for all the Son’s expenses.

Conclusion

150.To sum up, the breakdown of the sums to be paid by the Father is set out as follows:

Item	Amount (HK$) incurred up to July 2024
Rent	NIL
Education expenses (including school fees, miscellaneous expenses, tuition and extracurricular activities)	$367,233
Food and daily necessities’ expenses	$320,000
Insurance, medical, body check and dental expenses	$56,209
Clothing, toys and entertainment	$200,000
Transportation expenses	$100,000
Other expenses	$67,000
Autism and other related therapy expenses	NIL
Carer’s allowance	$732,000[31]
Total	$1,842,442

151.The breakdown of the monthly sums to be paid by the Father is set out as follows:

Item	Amount (HK$) from August 2024
Rent	$11,500 starting from December 2024[32]
Education expenses (including school fees, miscellaneous expenses, tuition and extracurricular activities)	$22,000
Food and daily necessities’ expenses	$7,500
Insurance, medical, body check and dental expenses	$2,500
Clothing, toys and entertainment	$2,000
Transportation expenses	$2,000
Other expenses	$1,500
Autism and other related therapy expenses	$20,000
Total	$69,000

152.I now order the Father to pay a lump sum of HK$1,842,442 to the Mother.

153.I further order the Father to pay a periodical payment of HK$57,500[33] per month to the Mother as the Son’s maintenance commencing from 15 August 2024 and thereafter on the 15^th day of each month until 14 December 2024 and a periodical payment of HK$69,000 per month to the Mother as the Son’s maintenance commencing from 15 December 2024 and thereafter on the 15^th day of each month until the Son reaches the age of 18 years old or completes full time education, whichever is later.

154.I further order him to pay another periodic payment of HK$12,000 per month to the Mother as the carer’s allowance commencing from 15 August 2024 and thereafter on the 15^th day of each month until 14 August 2028.

155.The Father had already paid HK$1,202,000 as interim maintenance. He should have paid certain sums to the Mother from August 2024 onwards to the date of this judgment. All these sums as well as half of the HK$1.1 million sum mentioned above (ie HK$550,000)[34] shall be deducted from the amount liable to be paid by the Father.

156.In the closing, Ms Chong for the Father asked for payment of the net balance by monthly instalments. I disallow as the net balance would not be very huge and the Father is able to pay forthwith. In any event, I consider that if necessary, he is entitled to apply for payment by instalments separately.

157.All the payments made by the Father to the Mother shall be subject to the First Charge of the Legal Aid Director.

158.I would request the Mother’s solicitors to draw up the order made above and let the Father’s solicitors for comments first before lodging with the court for approval. Just in case the parties find some clerical errors concerning my calculations and cannot agree to the sum to be deducted, they should jointly write to this court for clarification.

Costs

159.For the question of costs, I consider that the Mother is in breach of my Order dated 15 October 2021 not to instruct either Dr Fanny Lam to prepare a supplemental report or a development paediatrician updating the progress of the Son’s autism after the Son received 6 months of ABA therapy. She further unreasonably delayed in restoring the PTR as per the said Order but chose to take out the summons on 23 February 2024 seeking, inter alia, variation of the Son’s interim maintenance. Eventually, this summons was withdrawn by her. More importantly, one of the main issues in dispute concerning the payment to Autism Circle is ruled against her although I determine some other issues, like the carer’s allowance, in her favour. In the circumstances, a fair costs order shall be no order as to costs of these proceedings including all costs reserved, if any. The Mother’s own costs be taxed in accordance with the Legal Aid Regulations. I make this costs order nisi which shall become absolute unless any of the parties apply to vary by summons.