Mkkj v. Hwyv
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FCMP 79/2022 [2026] HKFC 15 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO 79 OF 2022 ________________________
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_____________________ J U D G M E N T _____________________ 1.The respondent mother (“Mother”) is applying for financial provision for her daughter (“C”), who was born in 2017 out of wedlock with the applicant father (“Father”). Background and salient facts of the case 2.The Father is now 41 years old. He has a Bachelor degree in English literature. After graduation, he started working in a law firm in 2008. He then changed to work in another industry and then back to work in law firm as legal executive since about 2013. 3.The Father had a previous marriage and a son was born in that marriage in 2015 (“Elder Son”). After divorce, the custody, care and control of the Elder Son was granted to the Father. The Elder Son was subsequently diagnosed with attention deficit hyperactivity disorder (“ADHD”) and has been receiving treatment. 4.The Mother is now 42 years old. She has a Bachelor degree in Social Science. After graduation, she had worked as account manager in a bank. 5.The parties met in 2016 and started dating. Shortly afterwards, they started co-habitation in a flat in Shau Kei Wan owned by the Father’s mother (“Shau Kei Wan Property”) since August 2016. 6.C was born in November 2017, now aged 8 years old, studying Primary 1 at the time of the trial. 7.Since the birth of C until mid 2021, C together with the Father, the Mother, the Elder Son and the Father’s parents lived at the Shau Kei Wan Property. 8.According to the Mother, she stopped working after co-habitation with the Father, being a housewife taking care of the family, the Elder Son and C after she was born, while the Father has been financially maintaining the family and her. 9.Since 1 September 2018, the Mother started working full time as an accounting clerk in law firm. 10.In December 2018, the Father bought a property in his sole name in Sai Ying Pun (“Sai Ying Pun Property”). 11.In February 2019, the Father opened a bank account in Hang Seng Bank (“Hang Seng Bank Account”), for repayment of mortgage for the Sai Ying Pun Property. 12.In March 2020, C was diagnosed of autistic spectrum disorder (“ASD”). 13.In January 2021, the Mother bought a property in Pok Fu Lam in her sole name (“Pok Fu Lam Property”), after her property in Yuen Long was sold. 14.Since about June 2021, the parties had started discussing about the amounts of expenses of C and there were expenses tables provided by the Mother to the Father. 15.The parties’ relationship turned sour in June 2021. The parties had different versions of why the relationship came to an end, making allegations against each other. 16.In July 2021, the Mother moved out of the Shau Kei Wan Property with C, and started living with the Mother’s parents. A domestic helper is now employed. 17.On or about 29 June 2021, the parties reached an agreement of the amount the Father should pay to the Mother as the maintenance of C, ie. in the monthly sum of HK$12,000. 18.The Father only paid for a couple of months and stopped payment since October 2021. According to the Mother, she had to borrow money from her mother. 19.In August 2021, C was diagnosed with primary hyperoxaluria type III, a kind of rare genetic disease affecting her kidneys and had undergone 5 operations to remove her kidney stones. 20.The Father got married with his wife (“Wife”) in May 2022. They now live in a rented flat with the Elder son and a domestic helper. 21.The Father initiated these proceedings by way of Originating Summons on 8 June 2022, applying for, inter alia, joint custody and access of C. 22.At the hearing on 21 July 2022, joint custody was granted to the Father and the Mother. Care and control was granted to the Mother, with defined access granted to the Father. 23.On 19 July 2022, the Mother took out an application for periodical payments for the benefit of C, asking for a monthly sum of HK$21,420 (“Application”). The Mother asked for the said periodical payments to be made retrospectively from October 2021. 24.As agreement cannot be reached, the case was adjourned for trial, with 3 days reserved. As the witness called by the Father cannot attend court, by consent, the case was adjourned part-heard to 20 March 2025 as Day 4 for the Father’s witness to give evidence. 25.In October 2024, C was diagnosed with ADHD. Witnesses and evidence The Mother’s case 26.The Mother gave evidence and did not call any other witness. She relied on a total of 8 affirmations (ie. the 1st affirmation, the 2nd affirmation, the 3rd affirmation, the 4th affirmation, the 5th affirmation, the updated finance affirmation filed on 29 August 2024, the consolidated affirmation filed on 10 October 2024 and the 6th affirmation). The Mother also relied on her Form E filed in 2022, and her Answer to Questionnaire. 27.In gist, the Mother’s case is that C has a total monthly financial needs of about HK$25,926, which is not far from the sum she asked for in the Application, ie. HK$21,420. Given the basic needs and special health conditions of C, and also the financial resources and earning ability of the Father, the Mother is of the view that the amount she claims is reasonable. 28.The Mother’s open offer dated 28 November 2024 are as follows :-
The Father’s case 29.The Father gave evidence and called a witness, Mr. Cheng. He relied on a total of 6 Affirmations (ie. the 2nd Affirmation, the 3rd Affirmation, the 4th Affirmation, the 5th Affirmation, the 6th Affirmation which is the updated finance affirmation and the 7th affirmation, which is the consolidated affirmation). He also relied on his Form E filed in 2022 and also his 2 Answers to Questionnaires. 30.The Father’s case is that the amount the Mother claims is exaggerated. Further, it is the Father’s case that the Mother had misappropriated funds from his bank accounts and funds he gave to the Mother to hold on trust for the children without his consent or knowledge, with the amount more than sufficient for the upbringing of C. The alleged misappropriation of funds are undisclosed financial resources of the Mother. The Mother also has other financial support or resources, which the Court should take into account. As a result, even if the Father is willing to pay for C’s maintenance, he should only be responsible for a proportion of the reasonable financial needs. 31.The Father’s witness, Mr. Cheng (“Cheng”), gave evidence. He relied on an affirmation filed on 29 August 2024. His evidence is mainly about the Company, in which the Father is a director at all material times and Mr. Cheng is a partner, and also the various businesses the Father and Cheng, together with some other friends / partners, had engaged in and how profits gained and losses incurred in those businesses. 32.The Father’s open offer dated 3 December 2024 are as follows :-
33.In the closing submissions, the Father revised his open offer to:-
The legal principles 34.The powers of the court to make financial orders for children born out of wedlock are set out in section 10(2) of Guardianship of Minors Ordinance, Cap. 13 (“GMO”) as follows :-
35.s.12A of GMO set out the duration of the financial orders for children to beyond the age of 18 in certain circumstances, in line with the provisions in Matrimonial Proceedings and Property Ordinance (“MPPO”). 36.In the case of a child of the family in matrimonial proceedings, s.7(2) of MPPO sets out the factors to which this Court shall have regard in exercising its discretion in making financial orders for the child. However, no factors, whether along the lines of s.7(2) of MPPO or paragraph 4(1) of Schedule 1 of the Children Act 1989 of the United Kingdom, have ever been incorporated into our GMO in Hong Kong. 37.The only test set out in s.10(2) of GMO appears to be what the court thinks is reasonable having regard to the means of the parent against whom an order is being sought. 38.Notwithstanding the differences in legislation between the GMO and the Children Act 1989, Re P (Child: Financial Provision) [2003] 2 FLR 865 seems to have been relied on by the Courts in Hong Kong, in considering what financial orders are reasonable for the benefit of a child born out of wedlock (see HMSE v JJS (FCMP 70/2008). 39.The legal principles as cited in Re P, as adopted in the Hong Kong cases including WGL v ASB [2013] HKFLR 391, have been considered. In WGL v ASB, Chu J. had succinctly summarised the legal principles in paragraphs 55 to 57 :-
Analysis 40.With the above legal principles in mind, I will now turn to the evaluation of evidence in relation to the Application. 41.Parties have initially identified and agreed the issues as follows:-
42.With inquiries from the court for clarification of the issues identified, the parties then came up with the revised agreed list of issues in dispute, as follows:-
43.There are the following issues not agreed by the parties:-
44.Before evaluating the evidence, it should be pointed out that the court is not bound by the parties’ list of issues identified. Their lists show what are hotly contested between the parties, but they do not necessarily represent or and certainly not binding on how the Court should approach their disputes and how the court should consider and rule, and to reach the decision and ruling. 45.In determining the present Application, ie. financial orders for a child born out of wedlock, the court should only consider matters and issues relevant for my consideration, guided by the legal principles. 46.The Court will not do forensic account as per the issues identified by the parties. Besides, it is not ancillary relief trial and the Court needs not rule on the amount of the matrimonial pot. Therefore, the Court won’t rule on :-
47.Guided by the legal principles as summarised above, the Court will consider and evaluate evidence on the financial resources of each of the parties. The financial resources of the parties include on one hand, the income, earning capacities, property and other financial resources; and on the other hand, the financial needs, obligations and responsibilities. The standard of living of the Father will also be considered as it will be relevant when considering the reasonable needs for C. 48.The Court will also consider and evaluate evidence about the reasonable expenses of C. The Court will not rule on “how much each of the parties should be responsible for the monthly maintenance of C”, but the Court will rule on the reasonable amount to be paid by the Father. 49.While considering the financial resources of the parties, the above issues identified by the parties (refer to paragraphs 41 to 43 above) will also be considered. The financial resources of the Father (A) The income, earning capacities, property and other financial resources of the Father 50.The Father is now living with his Wife, his Elder Son and a domestic helper in a rented flat, with a monthly rental of HK$20,000. The Father works as a legal clerk in a law firm, named with his uncle’s name, receiving a monthly salary of HK$35,000 (since November 2022; before that his monthly salary was HK$50,600). According to his Form E filed in 2022, he has the following major assets:-
51.The Father updated his financial situation in his updated 6th Affirmation, including the following main aspects :-
52.The Mother is of the view that the Father is earning much more than he has disclosed, had much higher earning capacity, had non-disclosed assets and other financial resources, which is summarised as follows :-
53.About income, the Father denied that he has other commission received from the law firm other than his basic salary. I agree with the Father for this point, as there is no basis to suggest that the Father is telling lies to the Inland Revenue Department or the law firm he is working at is conspiring with him. But it should be noted that (a) the law firm he is working at is named after his uncle’s name; and (b) the large amounts of entertaining expenses (“應酬費”) / reimbursement do raise suspicions, if not other income or commissions received, may suggest the effort the Father is putting in to explore other business opportunity. Even if not proving any success in his other businesses, at least can be for reference to show his earning capacity. 54.About other income, the Father had agreed that he received rental income from the Sai Ying Pun Property and also interest income from lending out money. 55.About the Company and the related loan of HK$1 million he made to Cheng and/or the Company, the Father and his witness, Cheng explained about the type of business they were engaged in, the business model and why no written or contemporaneous documents about how and why the various businesses loss in the sum alleged, resulting the Father having to bear his share of loss of about HK$1.4 million. 56.Mr. Ho submitted that both the Father and Cheng’s testimony was devoid of commercial sense and inherently improbable, for the following main reasons, which I agree :-
(B) The financial needs, obligations and responsibilities of the Father 57.About the financial needs, obligations and responsibilities, the Father explained the expenses in 4.1 to 4.3 of his Form E. In the 2022 Form E, his total monthly expenses are HK$87,172 (comprising of HK$64,553 general expenses, HK$14,723 personal expenses and HK$7,896 expenses for C). 58.According to the Father, he has the following liabilities:-
59.The Father updated his liabilities in his 6th Affirmation, including mainly the following :-
60.Having considered the evidence as a whole, I have the following ruling and observations :-
61.As pointed out by Mr. Ho, I agree that some of the answers about the Father’s financial situation and disclosure are unsatisfactory, but I am of the view that it is not to the extent of no full and frank disclosure that adverse inference is to be drawn. 62.About the standard of living of the Father, this is not one of the issues identified by the parties, but the Mother mentioned briefly in the submissions. 63.I agree that the standard of living of the Father has to be looked into, as stated by Hale J. in J v C (child: financial provision) [1983] 3 FCR 79 at 87 “the child is 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 living”. 64.It should be noted that this is not a big money case. Even during the time when the parties were still together the family may have spent money comfortably, it is nowhere near to any big money case. The standard of living of the Father in this case will be considered with reference to his spending in his Form E. I will consider the standard of living of the Father when I consider the reasonable expenses of C in the paragraphs below. The financial resources of the Mother (A) The income, earning capacities, property and other financial resources of the Mother 65.The Mother is now living with her parents, C and a domestic helper in a public housing with her parents being the registered owners. The Mother is an accounting clerk working in a law firm, receiving a monthly salary of HK$15,000. She also receives monthly rental income of the Pok Fu Lam Property in her sole name bought in June 2021 in the sum of HK$23,000. 66.According to her Form E filed in 2022, she has the following major assets:-
67.The Mother updated her financial situation in her updated affirmation filed on 29 August 2024, including the following updates:-
68.Resources of the Mother also include financial allowance from the government. But it should be noted that there is no certainty as to the amount as it also depends on the condition of C, eg. whether she will continue to be eligible for some of the financial allowance. The allegation that large sums had been dissipated by the Mother 69.It is the Father’s case that the Mother had misappropriated the Father’s assets, ie. the Mother had misappropriated the funds from the Father’s bank accounts without his consent or knowledge, which is one of the main and of the highest value of issues involved for this trial. As explained in the submissions, the allegedly misappropriated funds comprising of the following :-
70.According to the Father, during cohabitation, it was mutually agreed between both parties that the Father would serve as the primary breadwinner for the family, while the Mother would manage household responsibilities and care for C and the Father’s Elder Son. The Father, recognising his own limitations in accounting and time management, entrusted the management of his two bank accounts to the Mother, who possesses background in accounting and banking. During their co-habitation, the Mother had access to the following bank accounts based on the Father’s trust and reliance on her expertise: (a) Hang Seng Bank Account; and (b) HSBC Bank Account. 71.The Father further explains that the Hang Seng Bank Account was agreed to be a “Children’s Fund”, intended to accumulate savings for the future living and educational expenses of both his children. The account was established with the intention of securing the financial well-being of the children, particularly given the favourable interest rate associated with that account, which was set up as the mortgage payment account for the Sai Ying Pun Property. 72.The Father explains that it was not until July 2021 that the Father discovered the Mother had misappropriated a substantial sum of HK$2,158,352.47 from the Children’s Fund, transferring these funds to her personal bank accounts without the Father’s knowledge or consent since May 2020. 73.Further, it is the Father’s case that since the commencement of their cohabitation in 2016, the Father also entrusted approximately HK$1.8 million to the Mother, intended to be held on trust for him, by transferring to the Mother as “early savings” when there is spare money earned by the Father. To date, The Father says the Mother only returned about HK$1.2 million, leaving an outstanding amount of HK$570,201.86. 74.The Mother hotly contested the Father’s allegations. While the total amounts transferred from the Father’s account to the Mother’s account is not disputed, it is the Mother’s case that they were not misappropriated funds. The Mother explains in her affirmations, and submitted in Counsel’s submissions the following :-
75.It is the Mother’s case that :-
76.In view of the “children’s funds” in the Hang Seng Bank account, the Mother explains that after the opening of the account, the Father would deposit money into it for the Mother’s spending and investing instead of giving her cheques directly. The Mother would also deposit money into the Hang Seng Bank account and their money was mixed together. 77.It is the Mother’s case that the calculation of the Father of the alleged misappropriated funds is fraught with exaggeration and bias. The Mother explained that the net money she withdrew from the Hang Seng Account since May 2020 until they broke up was only about HK$510,000 because of 2 sums:-
78.According to the Mother, the Father admitted that she transferred HK$844,000 to him, but his argument is that the Mother “repaid” the said sum to him from the “early savings”. As the Mother disputes there was ever any “early savings”, her contention is that the said sum must be deducted from the money she withdrew from the Hang Seng bank account. 79.The Mother also explained about the whereabouts of some of the money deposited to her or transferred out by her. According to Ms Wong, the explanation is hardly comprehensive or satisfactory, while Mr. Ho is of the view the Mother has explained all she can and there is no concealing of hiding of assets or funds. On balance of probabilities, I do not accept the Father’s allegations that they are dissipation of assets or sums. But I have some concern in some the answers of disclosure or finance of the Mother. In any event, even if the sums concerned are not dissipated, they are clearly the financial resources transferred from the Father to the Mother. (B) The financial needs, obligations and responsibilities of the Mother 80.About the financial needs, obligations and responsibilities, the Mother explained the expenses in 4.1 to 4.3 of her Form E. In the 2022 Form E, her total monthly expenses are HK$56,972 (comprising of HK$39,738 general expenses, HK$6,368 personal expenses and HK$10,866 expenses for C). 81.The Mother’s liabilities in her Form E include:-
82.The Mother updated her liabilities in her updated affirmation filed on 29 August 2024, including mainly the updates about the loan from her mother. As she cannot afford the mortgage payment for the Pok Fu Lam Property, the monthly mortgage payment has been made by her mother, which form the loan she obtained from her mother, together with other sums she obtained as loan from her mother, accumulated to the total amount of HK$557,300 (ie. increase HK$427,300 from HK$130,000 in 2022 HK$557,300). 83.According to the Mother, with C’s diagnosis and physical conditions (see paragraphs 12, 19 and 25), they are financial responsibilities and burden that the court should consider. 84.But it should be noted, which is not in dispute that C has now started school in a normal primary school. I am of the view that despite she is still diagnosed of ASD and ADHD, her condition is relatively mild and not imposing too much financial burden on the Mother. With the expenses incurred in view of C’s conditions, I will consider as they appear in the corresponding item(s) in the next session when considering the reasonable expenses of C. 85.I have considered the parties’ evidence, including their evidence and explanation under cross-examination. I have the following ruling and observations :-
86.I am of the view that for the funds transferred to the Mother, the whereabouts of some amounts are not explained satisfactorily. Even the Father is not entitled to ask for add back like in a matrimonial ancillary relief case, those are financial resources of the Mother. 87.In view of income and earning capacity of the Mother, the Father is of the view that the Mother has the capacity to earn much more then she is earning now, as she had earning a monthly income of HK$50,000 from January to June in 2021 when she got a promotion, but the Mother chose to go back to the original position and earn less of just HK$15,000. 88.The Mother explained that she chose to work less and earn less as she needs to take care of C, because of her physical condition. While the love of the Mother for C is not disputed and it is understandable that the Mother may wish to spend more time with C, I have also considered the following :-
making it possible for the Mother to resume work in full. I accept that the Mother has earning capacity of about HK$50,000. 89.From the evidence before me, I am not prepared to conclude that there are non-disclosed assets of the Mother. 90.About other financial resources, I refer to the liability of the Mother (refer to the below paragraphs). According to the Mother, as the Father has not paid any maintenance for C since October 2021, and she cannot afford to pay for the mortgage for the Pok Fu Lam Property, she has borrowed money from her mother. But it should be pointed that there is no formal loan agreement signed or strict repayment terms. Also coupled with the close relationship with the Mother and her mother that there was repayment of sums in the investment of car parking space, considering all the evidence as a whole, I am of the view that her mother can provide financial resources to the Mother when she is in need. Any loan from her mother, taking it to the highest, is only soft loan. The Mother also explained she got some help from an Aunt, who also gave her some paid work. 91.There is also financial allowance from the government for C, which the Mother admits, eg. disability allowance and also some allowance for book, internet and transport. 92.Having considered the evidence, as pointed out by Ms Wong, some of the answers about the Mother’s financial situation and disclosure are unsatisfactory, but I am of the view that it is not to the extent of no full and frank disclosure that adverse inference is to be drawn. What are the reasonable needs of C 93.The Mother has updated C’s total expenses, including C’s share of the general expenses and C’s expenses, which I refer to the jointly signed table for the expenses of C lodged with the court on 28 November 2024, as follows :-
94.It is the Father’s case that the Mother has exaggerated the expenses for C and some of the items are not justified. For some items, the Father is of the view that the Mother has failed to provide sufficient supporting documents or any documents in support of the amounts claimed for the maintenance for C. 95.I have considered the case WGL v ASB [2013] HKFLR 391 at 431, para. 199, which is a case about varying maintenance, but I am of the view with some useful reference about the importance of keeping relatively detailed accounts of the expenses :-
96.I acknowledge that the keeping of the relatively detailed accounts and the production of documents in support is important and could assist, if not essential to the determination of the amount to be ruled. 97.About the lack of all or sufficient supporting documents, while acknowledging that the Mother has to prove her case for the items she claims, I have to emphasise that the provision of supporting documents of expenses in the matrimonial context has to be considered in a practical and reasonable manner. 98.Even with the provision of supporting documents, it is for the Court’s determination to consider the reasonableness of the expenses. In circumstances where no or insufficient supporting documents are provided, the court still has the discretion to consider whether to accept and to consider if the Mother has proved her case based on the evidence, and to rule accordingly what is reasonable and fair in the circumstances. 99.Both counsel confirm, which I agree, that a practical broad brush approach should be adopted in considering the reasonable needs of C, with some analysis on each item of expense to be made. 100.It is not in dispute that when the parties separated, in about June 2021, the parties discussed about the monthly payment to C and the Mother sent to the Father tables of monthly expenses. The Father produced the tables and What’s App communication screen capture in exhibit “MKKJ-3” and “MKKJ-4” (“Expenses Tables”). According to the Father, they are tables showing the amount of expenses for C the Mother requests from the Father, which is denied by the Mother. According to her, they are not all the expenses of C, but the expenses the Mother listed out the Father should pay. I will consider the content of the tables and the communication between the parties when I consider and rule the reasonable expenses for C. 101.Items (15), (17) and (23) of paragraph 93 above are agreed. I will now turn to each of the items of expenses disputed, with reference to the list of items claimed by the Mother as summarised in paragraph 93 above. The said joint table of agreed and disputed C’s expenses will also be considered. (1) Domestic helper 102.The Mother claims for HK$3,748. She calculates the sum by “(Maid – Salary $5,500 + Meal $40/day x 30 days + Travel Expenses $300 + Insurance $1,600/2 years + Agent Fee / long service payment $3,666 (monthly wages x 2/3) per year = $7,497 / 2 per month)”. 103.The Father opposes and offer HK$1,690, based on the calculation of “(Salary $4,990 + Insurance $630/2 years + Return flight ticket $1,300 every 2 years)”, ie. a total of $5,070/3, and also provided explanation with supporting documents of the amounts of insurance and flight tickets. 104.The Father’s view bout the amount of insurance and return flight tickets is more acceptable, which is supported by documents in support without challenge from the Mother. I agree that there is no need to pay for meals extra, if the domestic helper eats with the employer, but I will consider this when considering the expenses for food. 105.As the Mother moves back to live with her parents, a domestic helper is needed to take care of C when the Mother is at work. I accept that the domestic helper is employed mainly to take care of C, so that the Mother can work full time. Even if the domestic helper also assisted the family, I am of the view that the total sum be divided by 2 is reasonable. In view of the expenses of domestic helper, I round up to $5,100. By dividing by 2, I rule that the reasonable amount is HK$2,050. (2) Utilities 106.The Mother asks for HK$570. The Father opposes and offers HK$200. He explains that HK$1,200 should be the reasonable sum for utilities, with reference to his expenses reduced from HK$1,500 to HK$1,300. Taken into account the family with the Mother, her parents, the domestic helper and C, the reasonable share of C is HK$200. 107.The Mother is of the view that the Father’s view of only using HK$1,300 for utilities for his family is underestimated. The reasonable sum should be HK$2,000, having taken into account the expenses for rent and rates. I notice that the Mother reserving her position and not claiming any for accommodation, as she is now living at her parents’ property without paying any rent, I am of the view that a share of the management fees, rent and rates is reasonable. I am of the view that HK$2,000 is reasonable. I take the view that it should be divided by 4 (excluding the share of the domestic worker) and rule that the reasonable share of C is HK$500. (3) Accommodation 108.As the Mother reserved her position and did not claim any under this item, no sum will be provided. (4) Miscellaneous household expenses 109.The Mother claims for HK$500 under this item. The Father disagrees and offers HK$100. 110.I notice the Father’s expenses under this item decreases from HK$1,500 to zero. I am of the view that this item is essential, as it is reasonable for C to have incurred all sorts of miscellaneous household expenses, including but not limited to shampoo, conditioner, shower jel, soup, cleanser, tissue etc. I am of the view that HK$1,500 for the family is reasonable and C’s share be HK$375. (5) Supplements 111.The Mother claims HK$300 under this item. The Father opposes and is of the view that zero sum should be awarded, as the Mother had not raised this item before and had not provided any documents in support. I agree with the Father and rule out this item. (6) Household food (7) Meals out of home 112.I will consider these 2 items together. The Mother claims HK$3,000 for Household food and HK$1,000 for meals out of home. The Father opposes and offers HK$2,000 for Household food and none for meals out of home. 113.The Father is of the view that as the Mother claims HK$3,000 in the Expenses Tables, the reasonable amount for C, including eating with the domestic helper should be HK$2,000. He is of the view that none should be awarded for meals out of home, as he does not suggest C eats out during school days, and during holidays, the Father hopes to eat out with C and the corresponding expenses will be covered by him when he eats out with C. 114.The Mother disagrees with the Father’s interpretation of the Expenses Table. She is of the view that the sums there were only the part the Father should share. According to the Mother’s Form E, she claims HK$5,000 for household food under item 4.1, and in the Expenses Table, she claims HK$600 for meals out of home. 115.I am of the view that sometimes eating out even during school days is acceptable, but spending HK$1,000 on meals out of home for C is too much. In view of the domestic helper also eating with C, I am of the view that the reasonable sum for food (including household food and meals out of home) for C should be HK$3,000. (8) Transportation 116.The Mother claims HK$1,958, including school bus of $1,750 and the remaining $208 being taxi fees to and from school when C had medical appointment. 117.The Father opposes and offers HK$1,500. He explains that the Mother has never provided school bus information to him. Considering his Elder Son’s transportation expenses from Shau Kei Wan to the Western District, it only costs HK$1,680 per month of only 10 months, ie. HK$1,400 per month in average. The Father is further of the view that C needs not have medical appointment each month. Even if so, C should apply for half a day leave, and therefore only need one taxi ride of HK$70. 118.In view of school bus expenses, different schools and different providers may charge differently. I am of the view that this item of transportation include school bus fees, transportation fees to and from hospital for medical appointments and any other transportation expenses of C, and I rule that HK$1,800 is reasonable. (9) For school recess and lunch 119.The Mother asks for HK$600, which is disagreed by the Father who is of the view that none should be provided. The Father provided document in support, showing that it is the policy of the Education Department to provide, for the school year 2024/2025, “free lunch at school” for those primary school students who are eligible upon application. 120.The Father did not provide further details as to the programme nor cross-examine the Mother in detail about this aspect. It remains uncertain as to whether the scheme will be on-going and whether upon application by the Mother the application will be approved. With these in mind, I rule that a sum of HK$500 is reasonable to be awarded for lunch or snacks at school. (10) School books and stationery 121.The Mother claims HK$500, which is disagreed by the Father who offers HK$300. 122.The Father provides documents about the annual expenses for Primary 1 school books, which is about HK$3,000 (ie. about HK$250 per month), together with HK$300 for stationery per year (ie. HK$25 per month) and HK$600 per year to buy school bag (to be renewed for a new one once every 3 years, ie. about HK$17 per year). These are not challenged by the Mother during trial. I accept the Father’s explanation and rule HK$300 under this item. (11) School uniform and shoes 123.The Mother claims HK$250. The Father opposes and offers HK$200. The Father explains that the school uniform is about HK$3,000, which he is of the view for new ones to be bought once every 2 years (ie. HK$125 per month), and shoes in the sum of HK$900 with new pair to be bought once every year (ie. 75 per year). 124.In view of the growing needs of C, it is reasonable that the frequency of getting new uniform and shoes, and the amount of shoes may be more than what the Father offers. I am of the view the sum the Mother asks for, ie. HK$250 per month is reasonable. (12) School activities and miscellaneous expenses (13) Extra tuition fees (14) Extra curricular activities (19) Music therapy 125.I will consider these 4 items together. 126.The mother claims a total sum of HK$8,170 for these 4 items, comprising of:-
127.The Father disagrees and offers HK$100 for school activities and miscellaneous and HK$4,000 for the other 3 items. The Father explains that as the Mother had misled the Father, concealed information and refused to provide information about C’s school activities and interest class information for many occasions, the Father cannot understand and make appropriate and timely recommendation and arrangement for C. 128.The Father further explains that in view of his Elder Son, who also has special needs for his ADHD condition, and also in view of C’s energy and personality, the Father expects the ability of C to join after school class and activities should be slightly less than his Elder Son, and therefore the amount of expenses should be more or less similar to his Elder Son in the sum of HK$4,000. The Father also provides information about class and activities provided by charitable organisations and expressed his wish that he hopes C can participate in activities organised by school. The Father acknowledges that he learns from the school mistress of C that C is now participating the speech therapy and focus class organised by her school. 129.Having considered parties’ evidence, including the evidence during trial, I have to point out the Court is not to cast blame or find fault in who should be responsible for the present situation. Taking the Father’s case to the highest, even if I accept his allegations that he was not made known of C’s situations and activities in detail, while it is not acceptable, it is understandable in view of the hostile relationship between the parties and the reason of lack of communication at all, with all the allegations the parties had made against each other and the Mother’s explanation. For this trial, the Court is not to cast blame and cannot turn the clock back. For the purpose of this trial, I have to rule the reasonable sum for these items. 130.The expenses on the Father’s Elder Son may be for reference, but should not be a strict guideline, as I notice that the Elder Son is diagnosed of ADHD, but C’s condition is slightly different (refer to paragraphs 12, 19 and 25 of her conditions). Besides, the brought up and circumstances of C and the Elder Son is different. 131.With the circumstances of C, I accept that she can choose to join activities or class organised by the school or other charitable organisations which may be free of charge, but it should be noted there may still be some fees to be paid for these activities. I also accept that it is reasonable that some classes or activities to be registered for C may not be provided by the school or charitable organisations, in view of the time and schedule and the suitability for C. In view of school activities and miscellaneous expenses, I rule that HK$200 is reasonable. For extra tuition class, I rule that joining Maths and homework class, with the total sum of HK$2,060 is reasonable. For extra curricular activities, I rule that joining drawing and ballet and the amounts claimed by the Mother of HK$1,720 is reasonable. 132.For music therapy, having considered C’s condition, although she has the diagnosis as summarised above and it is understandable that the Mother may wish to provide her with more, including music therapy, I have considered C’s condition (refer to above paragraphs 12, 19, 25 and 84 above), as she has joined the primary school in the main stream, I am of the view that spending HK$2,400 per month in the circumstances with the background of this case is not reasonable and I disallow this item. (16) Holiday expenses 133.The Mother claims HK$1,700 and explains that “$300/week x 4 weeks for going to theme parks, farm, play house $6,000 short trip per year”. The Father disagrees and of the view that none should be awarded. I notice that the Father has included a sum of HK$500 as holiday expenses for child in his own Form E under item 4.3. Considering the circumstances and background of this case, I am of the view that HK$500 is reasonable. (18) ADHD medical expenses (20) ASD and kidney specialist expenses (21) eye inspection (22) teeth inspection 134.I will consider these items together. The Mother claims a total of HK$ for these items, comprising of:-
135.The Father disagrees and offers HK$200 for items (20), (21) and (22). The Father explains that the school will provide teeth health and inspection every year and he provided document in support, which is not disputed by the Mother. The Father further explains that he is of the view C had ASD/kidney and eye inspection once every 2 to 3 months, with each time expenses of HK$130, in addition, change of new pair of glasses once every 2 years of HK$800, and therefore he offers a monthly sum of HK$200. 136.In view of ADHD medical expenses, the Father explains that as the Mother had misled the Father, concealed information and refused to provide information about C’s medical information for many occasions, the Father cannot understand and make appropriate and timely recommendation and arrangement for C. The Father proposes that the decision of what treatment to be adopted to be made jointly by the parties and the expenses be jointly paid by both parties in a proportion to be ruled by the court by way of reimbursing the actual amount medical expenses spent. Also in view of the Father’s revised open offer in his closing submissions (see paragraph 33 above), I rule that HK$200 is reasonable for ASD and kidney specialist regular medical appointment expenses, eye inspection, including buying of glasses and teeth inspection, if any costs incurred. 137.For ADHD medical expenses and ASD medical expenses which are not regular appointment expenses, I urge the parties to communicate and discuss the treatment method in future, and these should be covered by way of undertaking of the Father to pay half of the medical expenses. 138.Based on a broad brush approach, the total reasonable expenses of C by adding up the above, which I round up, is about HK$14,100, excluding insurance premium and the additional amounts of medical expenses not covered by insurance to be shared by the parties. 139.About the Father’s ability to pay, it is confirmed by the Father during trial that he has the ability to pay reasonable amounts to be awarded by the Court. Therefore, the Father’s ability to pay is not an issue to be considered. Conclusion 140.This is a sad case, with the parties being young and bright persons with stable job both working in a different law firm, but engaging in these legal proceedings since 2022 regarding matters for their daughter C, spending much costs, time and effort in the past few years, with the difference in their open offer not to a large amount, being unable to reach settlement. 141.The hostile relationship between the parties and the complete lack of trust and the inability to attempt to understand the other’s situation can be witnessed by (a) the different versions from the parties of how and why their relationship ends; (b) how the case is proceeded; (c) the way the questionnaires were asked; and (d) the way the parties were cross-examined and the allegations and submissions made against each other. 142.Coincidently, both parties had earned much more than the salary they now receive (with the Father earning about HK$50,600 before his salary was cut and the Mother earning about HK$50,000 when she was promoted before). Each has a property in their sole name, but not living in their respective solely owned property. Each has borrowed loan from family. 143.With my analysis of evidence above, I am of the view that both of them have financial support from their family when the need arises, which is shown in the evidence. I also formed the view that both gave answers as to the finance in their evidence is unsatisfactory. I can accept that each of them had encountered difficulties, eg. the Father knowing that the Mother would not return the amounts transferred out, which he expected should be used on C or his children; the Mother expecting the Father to honour the agreement of paying HK$12,000 per month for C, but the Father only paid for a couple of months and ceased payment since October 2021. 144.In view of their answers in the Answer(s) to Questionnaire(s) and the evidence under cross-examination at trial, which are not satisfactory, I am of the view that both of them had exaggerated their financial difficulties unconsciously, if not intentionally misleading the court, and tried to paint a picture as they wish and believe, trying to convince the Court to rule in their favour. 145.One of the hotly contested issues is the money transferred out by the Mother, which I am not repeating my analysis above. Even if I do not rule they are money dissipated, they are obviously financial resources of the Mother, which I cannot ignore. 146.For the earning capacity of the parties, I am of the view that both much higher earning capacity than their existing monthly salary of HK$35,000 for the Father and HK$15,000 for the Mother. In relation to the Father, I am of the view that he has a much higher potential to earn much more from his business outside his full time job. As confirmed by the Father’s witness, Cheng, with the various business projects the Father was engaged in, the monthly profit can range from several thousands to tens of thousands per month. It is only because of social events, COVID and the economy downturn thereafter that various businesses incur loss. The diversity of the nature of businesses cannot be ignored, eg. investment in movie, expert of food, bar and restaurant, trading of masks and computer programming. 147.I have considered all the evidence and submissions, in view of the background and circumstances of the case. Based on the evidence before me, and the financial situation of the parties, including my analysis about the reasonable expenses of C, I am of the view that both parties should share the expenses of C, roughly about half half. I have also considered the financial allowance from the government. I am of the view that the amounts of allowance received from the government should not be deducted from the amounts of the total reasonable expenses that I rule, but should be treated as buffer and giving flexibility, in case some unexpected expenses for C arise in view of the background and circumstances of this case. With my analysis, the Father should pay HK$7,000 each month. 148.I am confident that both with much financial resources, in that :-
149.About whether the order should be backdated to October 2021, in view of my analysis above, the amounts transferred out by the Mother, even if not viewed as dissipated sums, are financial resources from the Father, now in the possession of the Mother. I am of the view that the amounts to be ordered is not to be backdated. 150.I hope with my ruling, the disputes between the parties come to an end. Other than emphasising that the court orders has to be complied with strictly, the Court also urge the parties to leave aside all the previous grudge and to start or to continue to communicate for the welfare and best interest of C, as joint custody is granted and the parties may need to communicate in view of C’s ADHD or ASD conditions and to explore the best treatment for her, if needed, in future. Orders 151.With the reasons aforesaid, I make the following orders:
152.In addition, the following undertaking is to be included in the preamble :-
Costs 153.Costs should generally follow the event. In view of my ruling for this trial, both the Father and the Mother has failed to make out their case in full and none of them is the winner. Having considered all circumstances and background of the case, including how parties have conducted these proceedings, I am of the view that both are to be responsible for the costs incurred. 154.I therefore order that there be no order as to costs, including all costs reserved. The Respondent’s own costs be taxed in accordance with Legal Aid Regulations. This is costs order nisi which shall be made absolute within 14 days.
Ms Catherine Wong and Ms Christy Chak, counsel, instructed by Patrick Mak & Tse for the Applicant Mr CC Ho, counsel, instructed by Messrs. NGANS Lawyers LLP for the Respondent | ||||||||||||||||||||||||||||||
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