Lokmeh v Harbour Radio Pty Ltd

District Court of NSW|2015-08-13

187 Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 Tancic v. Times Newspaper Ltd., [1999] E.W.J. No. 6510 Trad v Harbour Radio Pty Ltd (2011) 279 ALR 183 Waterhouse v Perkins [2000] NSWSC 641 Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 Category: Procedural and other rulings Parties: Plaintiff/Cross-Defendant: Bassem Abou Lokmeh First Defendant: Harbour Radio Pty Ltd (ACN 010 853 317) Second Defendant: Ray Hadley Third Defendant/Cross-Claimant: Mahassen Issa Representation: Counsel: Plaintiff/Cross-Defendant: Mr C J Dibb Defendants/Cross-Claimant: Mrs L Barnett

Solicitors: Plaintiff/Cross-Defendant: Mitry Lawyers Defendants/Cross-Claimant: Banki Haddock Fiora File Number(s): 2015/65515 Publication restriction: None

The issues before the court

The issues for determination are: 1. The plaintiff's objections to the proposed amended defence, and specifically in relation to the proposed contextual truth defence; 2. The plaintiff's application to strike out the common law qualified privilege defence; 3. The plaintiff's complaint about the particularisation of the statutory qualified privilege and justification defences; and 4. The plaintiff's objections to the capacity of the imputation pleaded as arising in the Statement of Cross-Claim against him.
The plaintiff's complaint about the particularisation of the statutory qualified privilege and justification defences raise issues which the parties can deal with by correspondence, and I have accordingly not made any rulings on such issues.

The pleadings

The following imputations are pleaded to arise from the matter complained of: 1. The plaintiff paid to have the third defendant murdered (the matter complained of as a whole and in particular lines 60-62). 2. The plaintiff paid money to a lawyer in an attempt to have the third defendant imprisoned (the matter complained of as a whole and in particular lines 60-62). 3. The plaintiff extorted thousands of dollars from the third defendant to withdraw criminal charges (the matter complained of as a whole and in particular lines 68-74 and 220-228).
The defendants filed a Defence on 1 June 2015. The defendants propose to rely at trial on defences of justification (s 25 Defamation Act 2005 (NSW)), contextual truth (s 26), statutory qualified privilege (s 30) and a "reply to attack" qualified privilege defence at common law.
The contextual imputations pleaded are as follows: 1. The plaintiff wanted the third defendant to be killed. 2. The plaintiff conducted himself in such a way to cause the third defendant to fear for her life. 3. Alternatively to (ii): The plaintiff caused the third defendant to fear for her life. 4. The plaintiff acted dishonestly by registering his marriage with the third defendant in Lebanon when he knew that the third defendant had filed for a divorce.
On 2 July 2015, the third defendant filed a cross-claim against the plaintiff. This cross-claim alleges the plaintiff posted the following comment on a Facebook page: "[Plaintiff's Facebook Profile Picture] Bassem Aboulokmeh added 2 new photos. 8 July 2014 . Bankstown . Is it halal for a married women [sic] to get remarried while she is still married, share please [Two photographs of a man and a woman]"
The following imputation is pleaded to arise from this Facebook posting: 1. The cross-claimant committed bigamy (the whole of the matter complained of).

The plaintiff's objection to the contextual truth defence

The plaintiff submits that the defence of contextual truth pleaded in paragraph 8(b) of the proposed defence should be struck out because: 1. Contextual imputation (i) is incapable of being conveyed "in addition to" (s 26) the plaintiff's imputation (a); 2. Contextual imputations (ii) and (iii) are objected to on the same basis, but additionally (and somewhat inconsistently) on the basis that they are incapable of being conveyed; 3. Contextual imputation (iv) is asserted to be incapable of "swamping" the plaintiff's imputations.

Contextual imputation (i)

The plaintiff submits that no imputation of killing, other than in lines 62 and 63 of the matter complained of, where the third defendant says that the plaintiff "allegedly" paid his lawyer $USD 20,000 "to either put me in jail or have me killed" is conveyed; the second defendant (Mr Hadley) responds by saying this is "a pretty serious accusation" in that it is "accusing someone of murder". The plaintiff argues that contextual imputation (i) is not therefore reasonably capable of being found by a jury to be an imputation "in addition to" the plaintiff's imputation, in that it is essentially the same claim.
Mrs Barnett, for the defendants, submits that the plaintiff's imputation (a) relates to a specific act, namely the plaintiff "allegedly" giving his lawyer a large amount of money with orders either to have the third defendant put in jail or killed, whereas the first contextual imputation is one of condition, and relates more generally to the plaintiff's state of mind (and, in particular, his animus towards the third defendant). She points out that none of the plaintiff's imputations deal with the plaintiff's state of mind at all, although the whole thrust of the matter complained of is the plaintiff's jealousy-fuelled quest for vengeance against the plaintiff. That quest for vengeance leads him to engage in a series of acts designed to harm or imprison the third defendant, only one of which is to pay his lawyer to have her killed.
The problem that I have with this submission is that contextual imputation (i) is very specific - it refers to the plaintiff wanting to have her killed, rather than to his having a revengeful state of mind, in that he would stop at nothing, including having her killed, or an imputation of similar effect. In its present form, contextual imputation (i) comes perilously close to being a restatement of the plaintiff's imputation (a). Is it capable of being "in addition to" it?
The imputation in its current form is perilously close to the plaintiff's imputation (a); what saves it, in my view, is that, whether the jury finds the plaintiff's imputation (a) true or not, it is still open to a jury to find that the plaintiff wanted the plaintiff dead or would stop at nothing to achieve this, whether he acted on that wish or not. In those circumstances, contextual imputation (i) is an imputation "in addition to" the plaintiff's imputation.
I additionally note that Mrs Barnett submits that it is inappropriate to strike out contextual imputations at all, in advance of the trial, and specifically refers to s 26 requiring that the two imputations be carried together and that the plaintiff's imputations be "defamatory". An imputation cannot be "defamatory" if it is found by a jury to be substantially true: McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 at [76] - [77]; Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [80] - [88]; cf Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 at [19], which Mrs Barnett submits does not consider the "process of attrition" involved in the weighing up of the contextual imputations. Mrs Barnett submits that the cases favouring the "process of attrition" are correctly decided and that I should follow that line of reasoning, and not Mizikovsky.
Mrs Barnett submits that to strike out any of the contextual imputations assumes that the jury will find that imputation (a) is conveyed, which is an assumption that cannot be made: McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 at [22]. While I agree that this is correct, that is not to say that a contextual imputation can never be struck out; the point is that there will be cases where it is inappropriate to strike out an imputation at an interlocutory stage on such a basis: Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 at [7]; Bateman v Fairfax Media Publications Pty Ltd (No 3) [2014] NSWSC 1601 at [57]. For the reasons I have set out above, I am satisfied that it would be inappropriate to do so now.
The plaintiff's objections to this contextual imputation (i) therefore fail. Although it is not strictly necessary to do so, in that capacity was not the basis for objection, I formally note that this imputation will go to the jury.

Contextual imputations (ii) and (iii)

These imputations are pleaded as alternatives to each other. I note that no challenge was made to this method of pleading (as to the availability of which, see Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227).
Mr Dibb submits that neither of these imputations can arise apart from the reference (covered by imputation (a)) to the allegation that the plaintiff paid his lawyer to have her put in jail or killed. Otherwise, he submits, "the matter says nothing about the third defendant being killed or fearing for her life" (written submissions, paragraph 3). If the matter complained of did so, any such imputation could not be conveyed "in addition to" the plaintiff's imputations.
Mrs Barnett responded to this by playing the matter complained of in court, to indicate her clients' reliance upon the fear in the voice of the third defendant. She drew my attention to the third defendant's tone of voice generally, and to occasions when her voice is heard to quiver (for example, at paragraph 40). Additionally, she identified specific phrases, such as the plaintiff saying that she could have been one of many women that are still trapped overseas: "I would have been one of them Ray", followed by "I would have been another number". She submits that the ordinary reasonable listener would hear fear in the third defendant's voice.
The tone of voice of a person can be an important factor in determining meaning, particularly in radio broadcasts: Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [197]; Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [56]; see also, in relation to a racial vilification claim, Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 at [67] - [68] (coincidentally, the broadcaster in all those proceedings was also Mr Hadley).
Additionally, the subject matter should be taken into account. The third defendant paints a picture of the plaintiff as a man who will stop at nothing in his reprisals against her, and where the dangers she was thereby exposed to made her fear for her life.
The combined effect of the language, subject matter and tone of voice of the third defendant are sufficient, on a capacity basis, for either of these contextual imputations to be conveyed, and they will go to the jury.

Contextual imputation (iv)

The capacity of the matter complained of to convey this contextual imputation is not challenged; the issue is what may generally be described as its "seriousness". Mr Dibb submits that an imputation of dishonestly registering his marriage in Lebanon when he knew that the third defendant (his wife) had filed for divorce is "self-evidently" (written submissions, paragraph 4) much less serious than imputations of attempts to murder her, to keep her effectively a prisoner in Lebanon, or to extort money from her. He submits that "the principle of proportionality (written submissions, paragraph 4) as well as the overriding obligations pursuant to s 56 Civil Procedure Act 2005 (NSW) require the court to ensure that proceedings are conducted with a view to determining the real issues in a "just, cheap and quick" fashion, and that on this basis I should refuse to permit the contextual imputation to stand.
In the course of listening to the matter complained of during the hearing, a missing word of some importance ("abuse") emerged. The third defendant (at 164), asserting that women have rights even though, "in the Muslim world", it is a man's world, goes on to say: "OK, um, but for them, they twist, turn and abuse the law as to [sic] they see fit". This reference to "abuse" is relevant to the sting in this contextual imputation is that the plaintiff has dishonestly performed an act of abuse of the legal process, in that he had his marriage registered in Lebanon even though he knew his marriage was over, and that his wife had filed for divorce. The parties have agreed to insert this word into the transcript.
Knowingly twisting, turning and abusing the legal process is conduct squarely placed at the feet of the plaintiff by this contextual imputation. Abuse of the process of any court is conduct which ordinary right-thinking members of the community may view very seriously. Independently of any examination of the particulars in support (this being the step Mr Dibb requested me to take), I am satisfied that the question of whether such an imputation is capable of "swamping" (to use Mr Dibb's word) the plaintiff's imputations, in accordance with the principles explained in John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541, is a matter which should be left to the jury.
This finding means that it is unnecessary for me to determine the two bases put forward by Mr Dibb to support his argument, namely that the particulars of justification support such a finding, and his proportionality argument. I should note that I would not have accepted either of these arguments in any event. First, for the reasons explained by Hodgson JA in Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20], the strength of a defence generally cannot be assessed by reference to the contents of particulars in an interlocutory application (see also Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 at [19]). Second, there is currently no appellate support for the concept of proportionality in relation to particulars of justification (or indeed in any area of the law, beyond legal costs issues).
Courts have, on occasion, restricted pleas of justification on the basis that they "could turn into a major inquiry into the harm…lasting for several months (Cruise and Another v Express Newspapers plc & Another [1999] QB 931 at 945), or distract the court with matters of peripheral relevance (Tancic v. Times Newspaper Ltd., [1999] E.W.J. No. 6510 at [18]). However, that is not the case here. The particulars relate to the relationship between the plaintiff and third defendant, and deal with issues likely to arise in relation to the factual matrix for the plaintiff's own imputations.
Accordingly, I decline to strike out contextual imputation (iv).

The defence of qualified privilege at common law

The proposed amended defence raises, at paragraph 8(d), a defence of common law qualified privilege, on the basis of reply to an attack. The terms of the matter complained of could not be clearer; the third defendant is answering the claims made by her brother about her on the same radio station some days earlier.
Mr Dibb submits, however, that this defence cannot be maintained because it is not the plaintiff who mounted the attack, but the third defendant's brother. He submits that, while Dixon J, in Loveday v Sun Newspapers (1938) 59 CLR 503 noted that the privilege would apply to third parties, citing Coward v Wellington [1837] E R 58; 7 Car & P 59, these were obiter remarks in a dissenting judgment, and the facts and issues in Coward v Wellington did not support such a contention. In David McNicol v the ACT Health Authority [1988] ACTSC 55 Kelly J restricted the ratio in Coward v Wellington to being authority for the proposition that a person attacked may defend himself by showing that the blame is properly attributable to some other person. If this is correct, Mr Dibb submits, then this decision is, at most, authority for the proposition that where a reply to an attack defames a third party (rather than the person making the attack) is it privileged only insofar as it seeks to throw on that third party some blame that the original attack sought to be laid upon the third defendant. This would restrict the third defendant's reply to something like "it wasn't me who deserted my children, it was my husband", according to Mr Dibb, which falls well short of the imputations pleaded here.
This is not how the statements of Dixon J in Loveday v Sun Newspapers has been approached by courts in New South Wales: see, for example, Palmer v Belan [1999] NSWSC 187 at [151]; Trad v Harbour Radio Pty Ltd (2011) 279 ALR 183 at [108] (defendant could reply not only on behalf of his principal but also another reporter). The question is, as Kirby J pointed out at [151] and the Court of Appeal pointed out at [111] - [113] respectively, whether the responding remarks are "not wholly unconnected with the defence" and not "mere retaliation".
Mr Dibb's submission in fact tacitly acknowledges that the responding party may make a reply to attack which defames a third party; his real submission appears to be that the third defendant went too far. That is an issue for the trial, where the parties can refer to the earlier radio broadcast to which the third defendant was replying (which I was not given) and such other relevant evidence as may be before the court. I do not propose to analyse the matter complained of to determine (as the Court of Appeal did in Trad v Harbour Radio Pty Ltd) whether the reply to attack is capable of applying to each of the imputations, not least because this step was not taken in the application before me.
Additionally, the circumstances in which a defence, especially a defence of qualified privilege, will be struck out on an interlocutory application would have to be extreme: Waterhouse v Perkins [2000] NSWSC 641 at [18] - [19]; Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 (refusal to strike out defence of triviality for a mass media publication); Combe v Santamaria (1986) 84 FLR 292. This is not one of those occasions.
The application to strike out the defence of qualified privilege at common law is refused.

The Statement of Cross Claim

The third defendant, as cross-claimant, brings proceedings for defamation arising from a publication on the cross-defendant's Facebook page. This Facebook posting consists of two photographs clearly of the same woman (although in each photograph she is shown sitting very closely to a different man) followed by the words:
"Is it halal for a married woman to get remarried while she is still married. Share please."
The cross-claimant pleads that this gives rise to the imputation that the plaintiff committed bigamy.
The plaintiff/cross-defendant challenges the imputation on the basis that it is not capable of being conveyed. The relevant principles for determination of capacity issues were agreed by the parties to be as set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227.
Mr Dibb's submitted that the word "halal" was wrong and/or incomprehensible unless pleaded with a true innuendo. The ordinary reasonable reader would, however, have no trouble understanding the sting of the libel since both photographs show the plaintiff apparently cuddling up to two different men, and the matter complained of refers to a woman getting remarried "while she is still married". The reference to "halal" is surplusage.
Nor does the use of a form of questioning deprive the publication of its defamatory meaning, for the reasons explained in so many judgments applying Jones v Skelton (1963) SR (NSW) 644 (where the question "Or is it?" formed part of the matter complained of).
This imputation is capable of being conveyed and will go to the jury.

Costs

The plaintiff has asked me to strike out the defences of contextual truth and qualified privilege at common law, along with the particulars, and to strike out the sole imputation pleaded in the Statement of Cross Claim (and, thereby, the Cross Claim itself). The plaintiff has been wholly unsuccessful in this regard and should accordingly pay the costs of this application.
The plaintiff's complaints about particulars of the s 25 and s 30 defences are matters recently raised and can be dealt with by correspondence. The plaintiff's complaints of "empty rhetoric" (written submissions, paragraph 25) are in any event too general to permit specific rulings.
The parties should bring in Short Minutes of Order for a timetable for the completion of pleadings in the claim and cross-claim. As soon as the parties can agree upon such orders, which should include discovery and interrogatories, they can consider the issue of mediation.
To further the issue of mediation, I propose to require the parties' legal representatives to serve on their clients notices pursuant to r 42.32 Uniform Civil Procedure Rules 2005 (NSW). This rule provides: "42.32 Smyth orders At any stage of proceedings, the court may order a party's legal representative to serve on the party: (a) a notice that specifies: (i) an estimate of the largest amount (inclusive of costs) for which judgment is likely to be given if the party is successful, and (ii) an estimate of the largest amount (by way of costs) that the party may be ordered to pay if the party is unsuccessful, or (b) a notice that specifies: (i) an estimate of the best outcome that the party is likely to achieve if the party is successful, and (ii) an estimate of the worst outcome that the party is likely to undergo if the party is unsuccessful."
This will be a lengthy jury trial. It is unlikely that the court can list this matter for hearing prior to mid-2016. The parties should take that into account when considering issues such as mediation.

Orders 1. Leave to the defendants to file an amended defence conformably with the proposed amended defence. 2. Plaintiff's application to strike out the defence of contextual truth and all the particulars to it dismissed. 3. Plaintiff's application to strike out the defence of common law qualified privilege and all the particulars to it dismissed. 4. Imputation (a) in the Statement of Cross Claim will go to the jury. 5. Parties have liberty to bring in Short Minutes of Order for a timetable in these proceedings, including a requirement that, at the close of proceedings, the legal representatives serve on their respective clients a Smyth order notice in accordance with UCPR r 42.32. 6. Plaintiff pay defendants' and cross-claimant's costs, with liberty to apply. 7. Proceedings adjourned to the Defamation List on 17 September 2015 at 9 a.m., with liberty to amend this date in the Short Minutes of order referred to above.

Annexure A

RAY HADLEY: Mahassen G'day.
MAHASSEN ISSA: Hello Ray, good morning.
RAY HADLEY: Good morning Mahassen
MAHASSEN ISSA: How are you?
RAY HADLEY: I'm well thank you, Mahassen.
MAHASSEN ISSA: It's good to be home.
RAY HADLEY: Now I'm told you're the young lady that we had spoken about previously, when I received a phone call from your brother.
MAHASSEN ISSA: Yes.
RAY HADLEY: You're the young lady who was, I believe, detained in Lebanon. Is that correct?
MAHASSEN ISSA: Yes
RAY HADLEY: Ok
MAHASSEN ISSA: By a stop order placed by my ex-husband.
RAY HADLEY: Ok. Ok now look, I have no interest in your private life. That's a matter for you and your former husband and your new partner. I have no interest in that. But the story back here, and you may not be aware of all the details, because you were over there. Umm, portrayed by your brother that you parted company with your former husband
MAHASSEN ISSA: Hmm-mm.
RAY HADLEY: You travelled to Lebanon,
MAHASSEN ISSA: Yep
RAY HADLEY: And got married to your new partner.
MAHASSEN ISSA: Yep.
RAY HADLEY: While still married to your former husband.
MAHASSEN ISSA: Hmm-mm. But that's not true.
RAY HADLEY: Ok, well you tell me
MAHASSEN ISSA: We were separated and I had filed for divorce.
RAY HADLEY: Right.
MAHASSEN ISSA: Yep, and um that's when I had left.
RAY HADLEY: Ok, so you're separated and filed for divorce. But did you get married to your new partner in Lebanon in some circumstance?
MAHASSEN ISSA: No, we had a commitment ceremony.
RAY HADLEY: A commitment ceremony, ok.
MAHASSEN ISSA: Yep.
RAY HADLEY: Who officiated at that? I'm not being… I'm just trying to get to the truth. I'm not being a sticky beak. But who officiated the commitment ceremony?
MAHASSEN ISSA: There was no officiation with the commitment ceremony, it was just done me and him.
RAY HADLEY: Ok, you committed to each other.
MAHASSEN ISSA: Yes.
RAY HADLEY: Ok, your former husband then reported to authorities in Lebanon that you had done something wrong. Is that what happened?
MAHASSEN ISSA: No, a Sydney Sheikh wrote a false statement to help my ex-husband.
RAY HADLEY: Ok.
MAHASSEN ISSA: To place a stop order on my Australian passport.
RAY HADLEY: And what did the Sheikh write to the authorities in Lebanon?
MAHASSEN ISSA: The Sheikh wrote that, um, we weren't separated and I had not filed for divorce, we were just in reconciliation.
RAY HADLEY: Ok, and you maintain that was not true?
MAHASSEN ISSA: No, definitely not because he was well aware of my situation and um, between, he was like a mediator between the two. He was asking me before I had left, you know, is there any chance of reconciliation. I said no, I filed for divorce and he was given the appropriate documentation and he still went ahead and wrote this false statement. Um, 30th of June.
RAY HADLEY: So the statement was,
MAHASSEN ISSA: 10 days and I was in Lebanon.
RAY HADLEY: So the statement arrives in Lebanon, and so, under what authority do the police or the other authorities detain you in Lebanon? How do they do that?
MAHASSEN ISSA: What had happened was the Sydney Sheikh, um, wrote this statement and gave it to my ex-husband and he registered the marriage through the Lebanese consulate in Sydney.
RAY HADLEY: Hmm-mm.
MAHASSEN ISSA: And that's how the authorities were alerted. And he also hired a Lebanese lawyer,
RAY HADLEY: Right
MAHASSEN ISSA: And allegedly paid him $20,000 American to either put me in jail or have me killed.
RAY HADLEY: Ok, well that's a pretty serious accusation in relation to accusing someone of murder. So we better leave that to the authorities to investigate without making any accusations. Otherwise I'll get myself in strife and probably so will you. So, um, how did you actually get back from Lebanon then? Because I know you've been on Channel 7 on their Sunday program recently, how did you actually come back?
MAHASSEN ISSA: I had to pay Bassem almost $18,000 Australian.
RAY HADLEY: You had to pay whom?
MAHASSEN ISSA: Ex-husband.
RAY HADLEY: You had to give him money?
MAHASSEN ISSA: Yes. To drop the charges.
RAY HADLEY: Oh, I see.
MAHASSEN ISSA: And the police have not even investigated that.
RAY HADLEY: Do you mean the police here or the police there?
MAHASSEN ISSA: No, police here.
RAY HADLEY: Ok, so how did you get the money to him then?
MAHASSEN ISSA: It was from borrowed from my uncle and my mum.
RAY HADLEY: Ok, so one of the really sad things about this, and I got a lot of phone calls after your brother phoned me.
MAHASSEN ISSA: Hmm-mm.
RAY HADLEY: And I have no need to cause you distress, but in every family structure Mahassen…
MAHASSEN ISSA: Yes
RAY HADLEY: We all have blues and fights and stinks. I mean it's part of being part of a family.
MAHASSEN ISSA: Yes
RAY HADLEY: And when things break down, and I said to your brother surely there's, you know, no matter what the circumstances, this is your sister you're talking about.
MAHASSEN ISSA: That's right.
RAY HADLEY: You mentioned your mum then. Have you been reconciled with your family since arriving back in Australia?
MAHASSEN ISSA: I have reconciled with my mother, however I have chosen not to reconcile with the rest of the family.
RAY HADLEY: Do they wish to reconcile with you?
MAHASSEN ISSA: Um, I don't know. I honestly don't know.
RAY HADLEY: How old are you love?
MAHASSEN ISSA: Sorry?
RAY HADLEY: How old are you?
MAHASSEN ISSA: I'm 30.
RAY HADLEY: Ok, you got a long way to go.
MAHASSEN ISSA: Yes.
RAY HADLEY: It's a long time not to talk to your siblings.
MAHASSEN ISSA: Yes, and um, just as long as my children are home with me, that was my main concern.
RAY HADLEY: Do you have the children with you?
MAHASSEN ISSA: Yes.
RAY HADLEY: That was the other thing people didn't understand, so I'll give you a chance to explain yourself, um. That you had, and this is not my allegation, their allegation, that you deserted your children and travelled with your boyfriend to Lebanon.
MAHASSEN ISSA: That is completely not true.
RAY HADLEY: Ok, so tell me what happened?
MAHASSEN ISSA: I would never have abandoned my children. I'm a primary school teacher of 10 years so I would never abandon my children. It was an actual initial agreement between me and the ex-husband, and he wanted me to go, believe it or not, I'm thinking why was he being so, you know…
RAY HADLEY: So it was a holiday, was it?
MAHASSEN ISSA: Yeah, and cause I said I was going to go for two weeks, I didn't tell him where…
RAY HADLEY: Hmmmm
MAHASSEN ISSA: And he was fine, it was very lucky that I did not take my children because the father maintains custody of the children and then my children would have been, uh, banned from leaving Lebanon and they would have to stay there.
RAY HADLEY: So, as in the case with many of these unfortunate scenarios, you'd said I'm going to have a holiday for a couple of weeks…
MAHASSEN ISSA: Yeah
RAY HADLEY: And uh, I guess he has some custody of the children so he said I'll take the children while you're away. Is that what…
MAHASSEN ISSA: Yes
RAY HADLEY: Transpired?
MAHASSEN ISSA: Yes, that's exactly what transpired.
RAY HADLEY: Do you have a shared parenting arrangement with him now, do the kids see both of you?
MAHASSEN ISSA: The children do see both of us, but I have retained full custody of the children because I was the primary caregiver since the day they were born.
RAY HADLEY: Sure, I understand that.
MAHASSEN ISSA: As their mother, and um, and the father just decided to remain, uh, that he, that I abandoned them, he just kept saying that I abandoned them and I didn't. There was an agreement I was only coming for two weeks, it's not as thought I was leaving for a year or two, it was like two weeks and I'll be back.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: And then when I tried to leave, um, that's when the travel ban was raised on my Australian passport and which, um, the authorities found very, very strange.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: Because they said, you're an Australian, you've come here on an Australian passport. How could that happen?
RAY HADLEY: Hmmm.
MAHASSEN ISSA: And I said, I know, I go well what's happening. I was just totally lost for words, thinking what is going on and then that's when, you know, the trouble all started.
RAY HADLEY: I guess, the warning here from the Lebanese Muslim Association is that women like you need to ensure they have an Islamic divorce before they travel to Lebanon.
MAHASSEN ISSA: The Islamic divorce, um, the Islamic divorce was handed down…
RAY HADLEY: Right.
MAHASSEN ISSA: However, it's the matter of denial in regards to them cause they don't give you the appropriate paperwork. The sheikhs, it's up to them at the end of the day…
RAY HADLEY: To give you the paperwork that says you are divorced under Islamic law?
MAHASSEN ISSA: Yeah, but they can chop and change whatever they want as they please. Because I'm not the first one, Ray, and I'm not the last one.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: It turns out this is rampant in our community at the moment, where the ex-husbands are forcing their women to stay, Australian women, by the way, Australians and their children, and keeping them entrapped in Lebanon for blackmail. And sheikhs know about it and they've kept a lid on it for this long.
RAY HADLEY: Well what they've said here, and this is obviously what you're saying. The Department of Foreign Affairs and Trade confirmed that other Australians, including mothers and children, are stopped from leaving Lebanon by Stop-Orders. Under Lebanese law, Lebanese nationals and non-nationals, may prevent family members from leaving Lebanon even if they are Australian citizens.
MAHASSEN ISSA: That's right. That's right.
RAY HADLEY: And the Australian government can't prevent or overturn these stop orders.
MAHASSEN ISSA: No.
RAY HADLEY: Or issues on Australian citizens. So, as you say, you're very lucky you didn't have your children there.
MAHASSEN ISSA: That's right. If I had my children there, he would have retained, the children would have had to stay over there.
RAY HADLEY: Hmmm.
MAHASSEN ISSA: And I could have, I never would have returned because I would not leave without my children.
RAY HADLEY: Sure.
MAHASSEN ISSA: And um,
RAY HADLEY: Anyway, let's try and be positive about it. You have your children with you now, um…
MAHASSEN ISSA: Yes
RAY HADLEY: You're talking to your mum, which is good.
MAHASSEN ISSA: Yep
RAY HADLEY: It's a decision for you whether you talk to your siblings and other members of your family, but you're only a young woman and obviously there's a lot of things to go and it's important for the children to have contact with…
MAHASSEN ISSA: Of course
RAY HADLEY: All those members of your family because they're positive influences even if they've had a disagreement with you.
MAHASSEN ISSA: Yes, that's right.
RAY HADLEY: Ok.
MAHASSEN ISSA: Now the children do see their aunties and uncles…
RAY HADLEY: Oh, that's good.
MAHASSEN ISSA: But I'm not involved or affiliated with them at this present time.
RAY HADLEY: Ok, you're still a bit angry obviously?
MAHASSEN ISSA: It's not anger, it's just I think the trauma from it all. And I think, Ray, um, if you, you'd probably understand and you know if anyone was down, you don't kick a person when their down. Especially when they're your flesh and blood.
RAY HADLEY: No, I understand that. Look, as I said I have no great understanding of the matters until I spoke to your brother, I have a greater understanding having spoken to you. But I did say to your brother, who seemed like a reasonable person and very respectful to me, I said this is your sister you're talking about. You know, and uh, and I've had plenty of blues with members of my family and I'll probably be the last one to lecture.
MAHASSEN ISSA: Well, we all have. We're all families and everyone's going to have a good [indistinct]. That's understandable, they're family constructs and that's what happens. There's breakdowns, there's happy times, it just happens. But the thing is, you know, you're talking to national as to, you know, putting such a violent, you know, slur on me and on your own sister. That was very traumatising.
RAY HADLEY: Well I must admit, I was a bit taken aback by his fervour. But in the end I asked him to resile from that and he did concede some points.
MAHASSEN ISSA: Yep.
RAY HADLEY: And I'm sure that he was quite emotional and disturbed by what he thought was happening.
MAHASSEN ISSA: He, the thing is they didn't, there's, look Ray all I just want to say is that nobody knows what happens in your home.
RAY HADLEY: No, I understand.
MAHASSEN ISSA: Between your wife, your partner, whoever.
RAY HADLEY: No, I understand that.
MAHASSEN ISSA: No-one knows what happens and I did not want, um, my family did not want the divorce to begin with.
RAY HADLEY: No, that's what he said to me. He didn't want it, but at the end of the day…
MAHASSEN ISSA: But it's not up to them.
RAY HADLEY: No, and thank you for making that point. You're a 30 year old woman who's quite capable of making her own decisions and I respect that as well. And I really appreciate the fact that you've jumped on the phone to talk to us today, to give us the other side of the story and I wish you the best in the future. Ok?
MAHASSEN ISSA: Thank you very much Ray. And I just want to make sure that also there was one more thing in regards to the extortion that was done by my ex-husband.
RAY HADLEY: Well, do me a favour will you, just drop off the extortion. Cause if you're gonna sue someone he'll sue me, not you. So…
MAHASSEN ISSA: Nah, I'm…
RAY HADLEY: Or call it alleged extortion.
MAHASSEN ISSA: Yeah, the alleged extortion.
RAY HADLEY: Yeah, go on.
MAHASSEN ISSA: Where I had to pay my ex-husband $15,000 in order for him to drop the charges. Now, um, all I'm just trying to say is that the ex-husbands are getting help from these Muslim clerics and these Sheikhs where they're in a position of power. You know, under the Australian law. Where he dismissed and disregarded my application for divorce, which meant nothing…
RAY HADLEY: Yeah
MAHASSEN ISSA: Absolutely nothing. And by him writing a statement on his own accord and sending that off to the authorities, and also when Zali Burrows, my lawyer, she came and helped me and she was trying to get me through the legal system. This Sheikh as well, [indistinct] from the mosque in Lakemba, he even went out of his way and called the head Sharia judge that was taking my trial. And reconfirmed, and he even knew how volatile my situation was.
RAY HADLEY: Sure. Well let me say this in relation to the treatment of some women, not all women, in the Muslim faith. There's a lot to be learned about the way women are…
MAHASSEN ISSA: It's a man's world. That's all it is.
RAY HADLEY: Well unfortunately, I think it may well be in that particular…
MAHASSEN ISSA: Even so, we have our rights. We have our rights, and it doesn't just stop in religion, as women we have our rights. Ok, um, but for them, they twist, turn the law as to they see fit.
RAY HADLEY: Well, you're a strong young woman and obviously you've got the message out there, and I'm sure that there will be other young women who take the lead from you to a certain extent.
MAHASSEN ISSA: I hopefully want to, um, set up a network to help these women that are still trapped overseas. And hopefully I can reach out, because I would have been one of them Ray.
RAY HADLEY: Alright then.
MAHASSEN ISSA: I would have been another number.
RAY HADLEY: Mahassen, if we can help in any way, we don't want women getting treated in the manner in which you described and if we can help we will, ok?
MAHASSEN ISSA: Thank you so much Ray.
RAY HADLEY: Thank you for your time.
MAHASSEN ISSA: Thank you, you take care.
RAY HADLEY: Mahassen Issa, the young lady we spoke about and not to, we spoke to her brother when she was trapped in Lebanon. She's now back in Australia thankfully.

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